Short Title

Marginal note:Short title

Interpretation

Marginal note:Definitions

aircraft means flying machines and guided missiles that derive their lift in flight chiefly from aerodynamic forces, and flying devices that are supported chiefly by their buoyancy in air, and includes any aeroplane, balloon, kite balloon, airship, glider or kite; (aéronef)

aircraft material

matériel aéronautique

aircraft material means engines, fittings, armament, ammunition, bombs, missiles, gear, instruments and apparatus, used or intended for use in connection with aircraft or the operation thereof, and components and accessories of aircraft and substances used to provide motive power or lubrication for or in connection with aircraft or the operation thereof; (matériel aéronautique)

civil court

tribunal civil

civil court means a court of ordinary criminal jurisdiction in Canada and includes a court of summary jurisdiction; (tribunal civil)

civil custody

garde civile

civil custody means the holding under arrest or in confinement of a person by the police or other competent civil authority, and includes confinement in a penitentiary or civil prison; (garde civile)

civil prison

prison civile

civil prison means any prison, jail or other place in Canada in which offenders sentenced by a civil court in Canada to imprisonment for less than two years can be confined, and, if sentenced outside Canada, any prison, jail or other place in which a person, sentenced to that term of imprisonment by a civil court having jurisdiction in the place where the sentence was passed, can for the time being be confined; (prison civile)

Code of Service Discipline

code de discipline militaire

Code of Service Discipline means the provisions of Part III; (code de discipline militaire)

court martial

cour martiale

court martial includes a General Court Martial and a Standing Court Martial; (cour martiale)

criminal organization has the same meaning as in subsection 467.1(1) of the Criminal Code; (organisation criminelle)

criminal organization offence

infraction d’organisation criminelle

criminal organization offence means

(a) an offence under section 467.11, 467.111, 467.12 or 467.13 of the Criminal Code, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or

(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); (infraction d’organisation criminelle)

defence establishment

établissement de défense

defence establishment means any area or structure under the control of the Minister, and the materiel and other things situated in or on any such area or structure; (établissement de défense)

Department

ministère

Department means the Department of National Defence; (ministère)

Deputy Minister

sous-ministre

Deputy Minister means the Deputy Minister of National Defence; (sous-ministre)

detention barrack

caserne disciplinaire

detention barrack means a place designated as such under subsection 205(1); (caserne disciplinaire)

Her Majesty’s Canadian Ship means any vessel of the Canadian Forces commissioned as a vessel of war; (navire canadien de Sa Majesté)

Her Majesty’s Forces

forces de Sa Majesté

Her Majesty’s Forces means the armed forces of Her Majesty wherever raised, and includes the Canadian Forces; (forces de Sa Majesté)

man

man[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 42]

materiel

matériels

materiel means all public property, other than real property, immovables and money, provided for the Canadian Forces or for any other purpose under this Act, and includes any vessel, vehicle, aircraft, animal, missile, arms, ammunition, clothing, stores, provisions or equipment so provided; (matériels)

mental disorder

troubles mentaux

mental disorder means a disease of the mind; (troubles mentaux)

military

militaire

military shall be construed as relating to all or any part of the Canadian Forces; (militaire)

military judge

juge militaire

military judge includes a reserve force military judge; (juge militaire)

military police

police militaire

military police means the officers and non-commissioned members appointed under regulations made for the purposes of section 156; (police militaire)

Minister

ministre

Minister means the Minister of National Defence; (ministre)

mutiny

mutinerie

mutiny means collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith; (mutinerie)

non-commissioned member

militaire du rang

non-commissioned member means any person, other than an officer, who is enrolled in, or who pursuant to law is attached or seconded otherwise than as an officer to, the Canadian Forces; (militaire du rang)

non-public property

biens non publics

non-public property means

(a) all money and property, other than issues of materiel, received for or administered by or through messes, institutes or canteens of the Canadian Forces,

(b) all money and property contributed to or by officers, non-commissioned members, units or other elements of the Canadian Forces for the collective benefit and welfare of those officers, non-commissioned members, units or other elements,

(c) by-products and refuse and the proceeds of the sale thereof to the extent prescribed under subsection 39(2), and

(d) all money and property derived from, purchased out of the proceeds of the sale of, or received in exchange for, money and property described in paragraphs (a) to (c); (biens non publics)

officer

officier

officer means

(a) a person who holds Her Majesty’s commission in the Canadian Forces,

(b) a person who holds the rank of officer cadet in the Canadian Forces, and

(c) any person who pursuant to law is attached or seconded as an officer to the Canadian Forces; (officier)

(b) includes, in respect of any punishment of imprisonment for life or for two years or more imposed outside Canada pursuant to the Code of Service Discipline, any prison or place in which a person sentenced to imprisonment for life or for two years or more by a civil court having jurisdiction in the place where the sentence is imposed can for the time being be confined, and

(c) means, in any place outside Canada where there is no prison or place for the confinement of persons sentenced to imprisonment for life or for two years or more, a civil prison; (pénitencier)

personal equipment

équipement personnel

personal equipment means all materiel issued to an officer or non-commissioned member for the personal wear or other personal use of that officer or non-commissioned member; (équipement personnel)

possession

possession[Repealed, 1995, c. 39, s. 175]

Provost Marshal

Provost Marshal[Repealed, 2013, c. 24, s. 2]

public property

biens publics

public property means all money and property of Her Majesty in right of Canada; (biens publics)

regular force

force régulière

regular force means the component of the Canadian Forces that is referred to in subsection 15(1); (force régulière)

release

libération

release means the termination of the service of an officer or non-commissioned member in any manner; (libération)

reserve force

force de réserve

reserve force means the component of the Canadian Forces that is referred to in subsection 15(3); (force de réserve)

scale of punishments

échelle des peines

scale of punishments means the scale of punishments as set out in subsection 139(1); (échelle des peines)

serious offence

infraction grave

serious offence means an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code; (infraction grave)

service convict

condamné militaire

service convict means a person who is under a sentence that includes a punishment of imprisonment for life or for two years or more imposed on that person pursuant to the Code of Service Discipline; (condamné militaire)

service custody

garde militaire

service custody means the holding under arrest or in confinement of a person by the Canadian Forces, and includes confinement in a service prison or detention barrack; (garde militaire)

service detainee

détenu militaire

service detainee means a person who is under a sentence that includes a punishment of detention imposed on that person pursuant to the Code of Service Discipline; (détenu militaire)

service offence

infraction d’ordre militaire

service offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline; (infraction d’ordre militaire)

service prison

prison militaire

service prison means a place designated as such under subsection 205(1); (prison militaire)

service prisoner

prisonnier militaire

service prisoner means a person who is under a sentence that includes a punishment of imprisonment for less than two years imposed on that person pursuant to the Code of Service Discipline; (prisonnier militaire)

service tribunal

tribunal militaire

service tribunal means a court martial or a person presiding at a summary trial; (tribunal militaire)

special force

force spéciale

special force means such component of the Canadian Forces as may be established pursuant to subsection 16(1); (force spéciale)

summary trial

procès sommaire

summary trial means a trial conducted by or under the authority of a commanding officer pursuant to section 163 and a trial by a superior commander pursuant to section 164; (procès sommaire)

superior officer

supérieur

superior officer means any officer or non-commissioned member who, in relation to any other officer or non-commissioned member, is by this Act, or by regulations or custom of the service, authorized to give a lawful command to that other officer or non-commissioned member; (supérieur)

terrorism offence

infraction de terrorisme

terrorism offence means

(a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23 of the Criminal Code,

(b) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, that is committed for the benefit of, at the direction of or in association with a terrorist group,

(c) an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, where the act or omission constituting the offence also constitutes a terrorist activity, or

(d) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c); (infraction de terrorisme)

terrorist activity

activité terroriste

terrorist activity has the same meaning as in subsection 83.01(1) of the Criminal Code; (activité terroriste)

terrorist group

groupe terroriste

terrorist group has the same meaning as in subsection 83.01(1) of the Criminal Code; (groupe terroriste)

unfit to stand trial

inaptitude à subir son procès

unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of a trial by court martial before a finding is made or to instruct counsel to do so, and in particular, unable on account of mental disorder to

(ii) has it in any place, whether or not that place belongs to or is occupied by the person, for the use or benefit of the person or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in the person’s custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

PART IDepartment of National Defence

Establishment of the Department

Marginal note:Formation of department

3 There is hereby established a department of the Government of Canada called the Department of National Defence over which the Minister of National Defence appointed by commission under the Great Seal shall preside.

R.S., c. N-4, s. 3.

Minister

Marginal note:Duties

4 The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for

(a) the construction and maintenance of all defence establishments and works for the defence of Canada; and

(b) research relating to the defence of Canada and to the development of and improvements in materiel.

R.S., 1985, c. N-5, s. 4;

R.S., 1985, c. 6 (4th Supp.), s. 10.

Marginal note:Designation of person to execute Minister’s functions

5 The Governor in Council, on the recommendation of the Minister, may designate any other person in addition to the Minister to exercise any power or perform any duty or function that is vested in or that may be exercised or performed by the Minister under this Act.

R.S., c. N-4, s. 5.

Marginal note:Associate Minister

6 The Governor General may, by commission under the Great Seal, appoint an Associate Minister of National Defence to hold office during pleasure and to exercise and perform such powers, duties and functions of the Minister as may be assigned to the Associate Minister by the Governor in Council.

R.S., c. N-4, s. 6.

Deputy Minister

Marginal note:Appointment

7 There shall be a Deputy Minister of National Defence who shall be appointed by the Governor in Council to hold office during pleasure.

R.S., c. N-4, s. 7.

Marginal note:Associate Deputy Ministers

8 The Governor in Council may appoint not more than three Associate Deputy Ministers of National Defence, each of whom shall have the rank and status of a deputy head of a department and as such shall, under the Minister and the Deputy Minister, exercise and perform such powers, duties and functions as deputy of the Minister and otherwise as the Minister may specify.

R.S., c. N-4, s. 8.

Judge Advocate General

Marginal note:Appointment

9(1) The Governor in Council may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Judge Advocate General of the Canadian Forces.

Marginal note:Tenure of office

(2) The Judge Advocate General holds office during pleasure for a term not exceeding four years.

Marginal note:Re-appointment

(3) The Judge Advocate General is eligible to be re-appointed on the expiry of a first or subsequent term of office.

R.S., 1985, c. N-5, s. 9;

1998, c. 35, s. 2.

Marginal note:Legal adviser

9.1 The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.

1998, c. 35, s. 2.

Marginal note:Superintendence of military justice

9.2(1) The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

Marginal note:Regular reviews

(2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

1998, c. 35, s. 2.

Marginal note:Responsible to Minister

9.3(1) The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.

Marginal note:Annual report

(2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.

Marginal note:Tabling in Parliament

(3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

1998, c. 35, s. 2.

Marginal note:Rank

9.4 The Judge Advocate General holds a rank that is not less than brigadier-general.

1998, c. 35, s. 2.

Marginal note:Authority to act for Judge Advocate General

10 The powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.

R.S., 1985, c. N-5, s. 10;

1998, c. 35, s. 2.

Marginal note:Non-derogation

10.1 For greater certainty, section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act.

1998, c. 35, s. 2.

Materiel

Marginal note:Delivery of materiel for sale or disposal

11 The Governor in Council may authorize the Minister to deliver to any department or agency of the Government of Canada, for sale or disposal to any countries or international welfare organizations and on any terms that the Governor in Council may determine, any materiel that has not been declared surplus and is not immediately required for the use of the Canadian Forces or for any other purpose under this Act.

R.S., 1985, c. N-5, s. 11;

1998, c. 35, s. 3.

Regulations

Marginal note:Power of Governor in Council to make regulations

12(1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

Marginal note:Minister’s power to make regulations

(2) Subject to section 13 and any regulations made by the Governor in Council, the Minister may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

Marginal note:Treasury Board’s power to make regulations

(a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;

(b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

(c) providing for any matter concerning the pay, allowances and reimbursement of expenses of officers and non-commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.

Marginal note:Retroactive effect

(4) Regulations made under paragraph (3)(a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect

(a) in the case of an inquiry under section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or

(b) in the case of an inquiry under section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.

Marginal note:Limitation on Minister’s power

13 Where in any section of this Act, other than section 12, there is express reference to regulations made or prescribed by the Governor in Council or the Treasury Board in respect of any matter, the Minister does not have power to make regulations pertaining to that matter.

R.S., c. N-4, s. 13.

Marginal note:Military Police Professional Code of Conduct

13.1 The Governor in Council may make regulations, to be known as the Military Police Professional Code of Conduct, to govern the conduct of members of the military police.

1998, c. 35, s. 5.

PART IIThe Canadian Forces

Constitution

Marginal note:Canadian Forces

14 The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.

R.S., c. N-4, s. 14.

Marginal note:Regular force

15(1) There shall be a component of the Canadian Forces, called the regular force, that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service.

Marginal note:Composition of regular force

(2) The maximum numbers of officers and non-commissioned members in the regular force shall be as authorized by the Governor in Council, and the regular force shall include such units and other elements as are embodied therein.

Marginal note:Reserve force

(3) There shall be a component of the Canadian Forces, called the reserve force, that consists of officers and non-commissioned members who are enrolled for other than continuing, full-time military service when not on active service.

Marginal note:Composition of reserve force

(4) The maximum numbers of officers and non-commissioned members in the reserve force shall be as authorized by the Governor in Council, and the reserve force shall include such units and other elements as are embodied therein.

R.S., 1985, c. N-5, s. 15;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Special force

16(1) In an emergency, or if considered desirable in consequence of any action undertaken by Canada under the United Nations Charter or the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party, the Governor in Council may establish and authorize the maintenance of a component of the Canadian Forces, called the special force, consisting of

(a) officers and non-commissioned members of the regular force who are placed in the special force under conditions prescribed in regulations;

(b) officers and non-commissioned members of the reserve force who, being on active service or having applied and been accepted for continuing, full-time military service, are placed in the special force under conditions prescribed in regulations; and

(c) officers and non-commissioned members not of the regular force or the reserve force who are enrolled in the special force for continuing, full-time military service.

Marginal note:Composition of special force

(2) The maximum numbers of officers and non-commissioned members in the special force shall be as authorized by the Governor in Council, and the special force shall include such units and other elements as are embodied therein.

Marginal note:Components

(2) A unit or other element organized under subsection (1), other than a command or a formation, shall from time to time be embodied in a component of the Canadian Forces as directed by or under the authority of the Minister.

Chief of the Defence Staff

Marginal note:Appointment, rank and duties of Chief of Defence Staff

18(1) The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces.

Marginal note:Responsibility and channels of communication

(2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.

R.S., c. N-4, s. 18.

Marginal note:Vice Chief of the Defence Staff

18.1 There shall be an officer appointed by the Chief of the Defence Staff to be the Vice Chief of the Defence Staff.

1998, c. 35, s. 6.

Marginal note:Absence or incapacity of Chief of the Defence Staff

18.2 In the event of the absence or incapacity of the Chief of the Defence Staff, the Vice Chief of the Defence Staff, or any other officer that is specified by the Minister or the Chief of the Defence Staff, has the control and administration of the Canadian Forces.

1998, c. 35, s. 6.

Canadian Forces Provost Marshal

Marginal note:Appointment

18.3(1) The Chief of the Defence Staff may appoint an officer who has been a member of the military police for at least 10 years to be the Canadian Forces Provost Marshal (in this Act referred to as the “Provost Marshal”).

Marginal note:Rank

Marginal note:Tenure of office and removal

(3) The Provost Marshal holds office during good behaviour for a term not exceeding four years. The Chief of the Defence Staff may remove the Provost Marshal from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

Marginal note:Powers of inquiry committee

(4) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

Marginal note:Duties and functions

(a) investigations conducted by any unit or other element under his or her command;

(b) the establishment of selection and training standards applicable to candidates for the military police and the ensuring of compliance with those standards;

(c) the establishment of training and professional standards applicable to the military police and the ensuring of compliance with those standards; and

(d) investigations in respect of conduct that is inconsistent with the professional standards applicable to the military police or the Military Police Professional Code of Conduct.

2013, c. 24, s. 4.

Marginal note:General supervision

18.5(1) The Provost Marshal acts under the general supervision of the Vice Chief of the Defence Staff in respect of the responsibilities described in paragraphs 18.4(a) to (d).

Marginal note:General instructions or guidelines

(2) The Vice Chief of the Defence Staff may issue general instructions or guidelines in writing in respect of the responsibilities described in paragraphs 18.4(a) to (d). The Provost Marshal shall ensure that they are available to the public.

Marginal note:Specific instructions or guidelines

(3) The Vice Chief of the Defence Staff may issue instructions or guidelines in writing in respect of a particular investigation.

Marginal note:Availability to public

(4) The Provost Marshal shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

Marginal note:Exception

(5) Subsection (4) does not apply in respect of an instruction or guideline, or of a part of one, if the Provost Marshal considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or that part of it, to be available to the public.

2013, c. 24, s. 4.

Marginal note:Annual report

18.6 The Provost Marshal shall, within three months after the end of each fiscal year, submit to the Chief of the Defence Staff a report concerning the activities of the Provost Marshal and the military police during the year. The Chief of the Defence Staff shall submit the report to the Minister.

2013, c. 24, s. 4.

Powers of Command

Marginal note:Authority of officers and non-commissioned members

19 The authority and powers of command of officers and non-commissioned members shall be as prescribed in regulations.

R.S., 1985, c. N-5, s. 19;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Enrolment

Marginal note:Commissioned officers

20(1) Commissions of officers in the Canadian Forces shall be granted by Her Majesty during pleasure.

Marginal note:Officer cadets and non-commissioned members

(2) Persons shall be enrolled as officer cadets or as non-commissioned members for indefinite or fixed periods of service as may be prescribed in regulations made by the Governor in Council.

Marginal note:When consent of parent or guardian required

(3) A person under the age of eighteen years shall not be enrolled without the consent of one of the parents or of the guardian of that person.

R.S., 1985, c. N-5, s. 20;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Ranks of officers and non-commissioned members

21(1) For the purposes of this Act, the ranks of the officers and non-commissioned members of the Canadian Forces shall be as set out in the schedule.

Marginal note:Designation

(2) A person holding a rank set out in the schedule shall use, or be referred to by, a designation of rank prescribed in regulations made by the Governor in Council but only in the circumstances prescribed in those regulations.

Marginal note:Numbers in ranks and trade groups

22 The maximum number of persons in each rank and trade group of the Canadian Forces shall be determined as prescribed in regulations made by the Governor in Council.

R.S., c. N-4, s. 22.

Marginal note:Obligation to serve

23(1) The enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.

Marginal note:Oaths and declarations on enrolment

(2) Oaths and declarations required on enrolment shall be taken and subscribed before commissioned officers or justices of the peace and shall be in such forms as may be prescribed in regulations.

R.S., c. N-4, s. 23.

Marginal note:Consent to transfer

24 No officer or non-commissioned member shall be transferred from the regular force to the reserve force or from the reserve force to the regular force unless the officer or non-commissioned member consents to the transfer.

R.S., 1985, c. N-5, s. 24;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Effect of receipt of pay if not enrolled

25 A person who, although not enrolled or re-engaged for service, has received pay as an officer or non-commissioned member is, until the person claims to be released and is released, deemed to be an officer or non-commissioned member, as the case may be, of that component of the Canadian Forces through which the pay was received and to be subject to this Act as if the person were such an officer or non-commissioned member duly enrolled or re-engaged for service.

R.S., 1985, c. N-5, s. 25;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Effect of receipt of pay if irregularly enrolled

26(1) A person who, although erroneously or irregularly enrolled or re-engaged, has received pay as an officer or non-commissioned member of that component of the Canadian Forces in which the person was so enrolled or re-engaged, is deemed to be an officer or non-commissioned member, as the case may be, regularly enrolled or re-engaged, and is not, except as provided in subsection (2), entitled to be released on the ground of the error or irregularity.

Marginal note:Provision for release

(2) A person who is, by virtue of subsection (1), deemed to be an officer or non-commissioned member and who claims to be released within three months after the date of commencement of the pay and establishes the error or irregularity referred to in that subsection shall, except when on active service or during an emergency, be released.

Marginal note:Method of release

(3) The commanding officer of a person who claims to be released on the ground of not having been enrolled or re-engaged, or not having been regularly enrolled or re-engaged, shall forthwith forward the claim to the authority having power to effect the release and the person, if entitled to be released, shall be released with all convenient speed.

R.S., 1985, c. N-5, s. 26;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Attachment and Secondment

Marginal note:Manner and conditions of attachment and secondment

27 An officer or non-commissioned member may be attached or seconded to another component of the Canadian Forces or to any department or agency of government, any public or private institution, private industry or any other body in such manner and under such conditions as are prescribed in any other Act or in regulations, but no officer or non-commissioned member of the reserve force who is not on active service shall be attached or seconded pursuant to this section unless the officer or non-commissioned member consents to the attachment or secondment.

R.S., 1985, c. N-5, s. 27;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Promotion

Marginal note:Authority to promote

28 Subject to section 22 and to regulations, officers and non-commissioned members may be promoted by the Minister or by such authorities of the Canadian Forces as are prescribed in regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 28;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Grievances

Marginal note:Right to grieve

29(1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

Marginal note:Exceptions

(b) a decision of a board, commission, court or tribunal established other than under this Act; or

(c) a matter or case prescribed by the Governor in Council in regulations.

Marginal note:Military judges

(2.1) A military judge may not submit a grievance in respect of a matter that is related to the exercise of his or her judicial duties.

Marginal note:Manner and conditions

(3) A grievance must be submitted in the manner and in accordance with the conditions prescribed in regulations made by the Governor in Council.

Marginal note:No penalty for grievance

(4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance.

Marginal note:Correction of error

(5) Notwithstanding subsection (4), any error discovered as a result of an investigation of a grievance may be corrected, even if correction of the error would have an adverse effect on the officer or non-commissioned member.

Marginal note:Authorities for determination of grievances

29.1(1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

Marginal note:Different authorities

(2) The regulations may provide that different types of grievances may be considered and determined by different authorities.

1998, c. 35, s. 7.

Marginal note:Grievances submitted by military judges

29.101 Despite subsection 29.1(1), a grievance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff.

2013, c. 24, s. 6.

Marginal note:Final authority

29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:Referral to Grievances Committee

29.12(1) The Chief of the Defence Staff shall refer every grievance that is of a type prescribed in regulations made by the Governor in Council, and every grievance submitted by a military judge, to the Grievances Committee for its findings and recommendations before the Chief of the Defence Staff considers and determines the grievance. The Chief of the Defence Staff may refer any other grievance to the Grievances Committee.

Marginal note:Material to be provided to Board

(2) When referring a grievance to the Grievances Committee, the Chief of the Defence Staff shall provide the Grievances Committee with a copy of

(a) the written submissions made to each authority in the grievance process by the officer or non-commissioned member presenting the grievance;

(b) any decision made by an authority in respect of the grievance; and

(c) any other information under the control of the Canadian Forces that is relevant to the grievance.

Marginal note:Delegation

29.14(1) The Chief of the Defence Staff may delegate any of his or her powers, duties or functions as final authority in the grievance process to an officer who is directly responsible to the Chief of the Defence Staff, except that

(a) a grievance submitted by an officer may be delegated only to an officer of equal or higher rank; and

Marginal note:Conflict of interest

(2) An officer who is placed in a real, apparent or potential conflict of interest as a result of a delegation may not act as final authority in respect of the grievance and shall advise the Chief of the Defence Staff in writing without delay.

Marginal note:Subdelegation

(3) The Chief of the Defence Staff may not delegate the power to delegate under subsection (1).

Military Grievances External Review Committee

Marginal note:Grievances Committee

29.16(1) The Canadian Forces Grievance Board is continued as the Military Grievances External Review Committee, consisting of a Chairperson, at least two Vice-Chairpersons and any other members appointed by the Governor in Council that are required to allow it to perform its functions.

Marginal note:Full- or part-time

(2) The Chairperson and one Vice-Chairperson are each full-time members and the other members may be appointed as full-time or part-time members.

Marginal note:Tenure and removal

(3) Each member holds office during good behaviour for a term not exceeding four years but may be removed by the Governor in Council for cause.

Marginal note:Re-appointment

(4) A member is eligible to be re-appointed on the expiry of a first or subsequent term of office.

Marginal note:Duties of full-time members

(5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

Marginal note:Conflict of interest — part-time members

(6) Part-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.

Marginal note:Remuneration

(7) Members who are not officers or non-commissioned members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.

Marginal note:Travel and living expenses

(8) Members who are not officers or non-commissioned members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.

Marginal note:Status of members

(9) Members who are not officers or non-commissioned members are deemed

(c) to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

Marginal note:Secondment

(10) An officer or a non-commissioned member who is appointed as a member of the Grievances Committee shall be seconded to the Grievances Committee in accordance with section 27.

Marginal note:Oath of office

(11) Every member shall, before commencing the duties of office, take the following oath of office:

I, , do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Grievances External Review Committee in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Grievances External Review Committee, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

Marginal note:Chairperson

29.17(1) The Chairperson is the chief executive officer of the Grievances Committee and has supervision over and direction of its work and staff.

Marginal note:Absence or incapacity

(2) In the event of the absence or incapacity of the Chairperson or if that office is vacant, the Minister may authorize a Vice-Chairperson to exercise the powers and perform the duties and functions of the Chairperson.

Marginal note:Delegation

(3) The Chairperson may delegate to a Vice-Chairperson any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 29.28(1).

Marginal note:Staff

Marginal note:Experts

(2) The Grievances Committee may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Grievances Committee in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.

Marginal note:Duties and functions

29.2(1) The Grievances Committee shall review every grievance referred to it by the Chief of the Defence Staff and provide its findings and recommendations in writing to the Chief of the Defence Staff and the officer or non-commissioned member who submitted the grievance.

Marginal note:Duty to act expeditiously

(2) The Grievances Committee shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

Marginal note:Powers

29.21 The Grievances Committee has, in relation to the review of a grievance referred to it, the power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

Marginal note:Witness not excused from testifying

29.23(1) No witness shall be excused from answering any question relating to a grievance before the Grievances Committee when required to do so by the Grievances Committee on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Marginal note:Answer not receivable

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

Marginal note:Expenses

29.24 Travel and living expenses incurred in appearing before the Grievances Committee shall, in the discretion of the Grievances Committee, be paid, in accordance with applicable Treasury Board directives, to the officer or non-commissioned member whose grievance is being heard, and to that person’s assisting officer or counsel, if the Grievances Committee holds a hearing at a place in Canada that is not their ordinary place of residence.

Marginal note:Return of documents, etc.

29.25 Documents and things presented to the Grievances Committee at a hearing shall, on request, be returned to the person who presented them within a reasonable time after the Grievances Committee has provided its findings and recommendations to the Chief of the Defence Staff.

Marginal note:Rules

(a) the manner of dealing with grievances referred to the Grievances Committee, including the conduct of investigations and hearings by the Grievances Committee;

(b) the apportionment of the work of the Grievances Committee among its members and the assignment of members to review grievances; and

(c) the performance of the duties and functions of the Grievances Committee.

Marginal note:Hearings in private

(2) A hearing of the Grievances Committee is to be held in private, unless the Chairperson, having regard to the interests of the persons participating in the hearing and the interest of the public, directs that the hearing or any part of it be held in public.

Marginal note:Protection of members

29.27 No criminal or civil proceedings lie against any member of the Grievances Committee, or against any person acting on its behalf, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Grievances Committee.

Marginal note:Annual report

29.28(1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the activities of the Grievances Committee during that year and its recommendations, if any.

Marginal note:Tabling in Parliament

(2) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

Release

Marginal note:Entitlement

30(1) Except during an emergency, an officer or non-commissioned member who is not on active service is entitled to be released at the expiration of the term of service for which the officer or non-commissioned member is enrolled or re-engaged.

Marginal note:Effect of illegal absence

(2) Except as may be prescribed in regulations made by the Governor in Council, any period during which an officer or non-commissioned member is in a state of desertion or is absent without leave shall not be reckoned toward the completion of the term of service for which that officer or non-commissioned member was enrolled or re-engaged.

Marginal note:Exception in emergency or when on active service

(3) Where the term of service for which an officer or non-commissioned member is enrolled or re-engaged expires during an emergency or when the officer or non-commissioned member is on active service or within one year after the expiration of an emergency or after he has ceased to be on active service, the officer or non-commissioned member is liable to serve until the expiration of one year after the emergency has ceased to exist or after he has ceased to be on active service, as the case may be.

Marginal note:Reinstatement

(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, and

(b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,

the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred.

R.S., 1985, c. N-5, s. 30;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Active Service

Marginal note:Placing forces on active service

31(1) The Governor in Council may place the Canadian Forces or any component, unit or other element thereof or any officer or non-commissioned member thereof on active service anywhere in or beyond Canada at any time when it appears advisable to do so

(b) in consequence of any action undertaken by Canada under the United Nations Charter; or

(c) in consequence of any action undertaken by Canada under the North Atlantic Treaty, the North American Aerospace Defence Command Agreement or any other similar instrument to which Canada is a party.

Marginal note:When officers and non-commissioned members deemed on active service

Marginal note:Proclamation for meeting of Parliament

32 Whenever the Governor in Council places the Canadian Forces or any component or unit thereof on active service, if Parliament is then separated by an adjournment or prorogation that will not expire within ten days, a proclamation shall be issued for the meeting of Parliament within ten days, and Parliament shall accordingly meet and sit on the day appointed by the proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.

R.S., c. N-4, s. 32.

Service

Marginal note:Liability in case of regular force

33(1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.

Marginal note:Liability in case of reserve force

(2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof

(a) may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and

(b) may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.

Marginal note:Exception in case of reserve force

(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

Meaning of duty

(4) In this section, duty means any duty that is military in nature and includes any duty involving public service authorized under section 273.6.

R.S., 1985, c. N-5, s. 33;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 8.

Limitation on Deployment

Marginal note:Persons under eighteen

34 A person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.

R.S., 1985, c. N-5, s. 34;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 9;

2000, c. 13, s. 1.

Pay and Allowances

Marginal note:Treasury Board to establish

35(1) The rates and conditions of issue of pay of officers and non-commissioned members, other than military judges, shall be established by the Treasury Board.

Marginal note:Reimbursements and allowances

(2) The payments that may be made to officers and non-commissioned members by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their service shall be determined and regulated by the Treasury Board.

R.S., 1985, c. N-5, s. 35;

R.S., 1985, c. 31 (1st Supp.), s. 60(E);

1998, c. 35, s. 10.

Supply and Issue of Materiel

Marginal note:Ministerial approval

36 The materiel supplied to or used by the Canadian Forces shall be of such type, pattern and design and shall be issued on such scales and in such manner as the Minister, or such authorities of the Canadian Forces as are designated by the Minister for that purpose, may approve.

R.S., c. N-4, s. 36.

Public Property

Marginal note:Liability for loss or damage

37 The conditions under which and the extent to which an officer or non-commissioned member is liable to Her Majesty in respect of loss of or damage to public property shall be as prescribed in regulations.

R.S., 1985, c. N-5, s. 37;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Non-public Property

Marginal note:Non-public property of units

38(1) The non-public property of a unit or other element of the Canadian Forces shall vest in the officer from time to time in command of that unit or other element, and shall be used for the benefit of officers and non-commissioned members or for any other purpose approved by the Chief of the Defence Staff in the manner and to the extent authorized by the Chief of the Defence Staff.

Marginal note:Non-public property of disbanded units

(2) The non-public property of every disbanded unit or other disbanded element of the Canadian Forces vested in the officer in command of that unit or other element shall pass to and vest in the Chief of the Defence Staff, and may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.

Marginal note:Non-public property of units or elements in altered circumstances

(3) Where, by reason of a substantial reduction in the number of officers and non-commissioned members serving in a unit or other element of the Canadian Forces or by reason of a change in the location or other conditions of service of a unit or other element, the Chief of the Defence Staff considers it desirable to do so, he may direct that the non-public property or any part thereof that is vested in the officer in command of that unit or other element shall pass to and be vested in the Chief of the Defence Staff on the terms set out in subsection (2).

R.S., 1985, c. N-5, s. 38;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Other non-public property

39(1) Non-public property acquired by contribution but not contributed to any specific unit or other element of the Canadian Forces shall vest in the Chief of the Defence Staff and, subject to any specific directions by the contributor as to its disposal, may be disposed of at the discretion and direction of the Chief of the Defence Staff for the benefit of all or any officers and non-commissioned members or former officers and non-commissioned members, or their dependants.

Marginal note:By-products and refuse

(2) By-products and refuse derived from rations and other consumable stores issued to the Canadian Forces for use in service kitchens, and the proceeds of the sale thereof, shall, to the extent that the Governor in Council may prescribe, be non-public property.

Marginal note:Alienation of non-public property

(3) Except as authorized by the Chief of the Defence Staff, no gift, sale or other alienation or attempted alienation of non-public property is effectual to pass the property therein.

R.S., 1985, c. N-5, s. 39;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Liability for loss or damage

40 The conditions under which and the extent to which an officer or non-commissioned member is liable to make restitution or reimbursement in respect of loss of or damage to non-public property resulting from the negligence or misconduct of that officer or noncommissioned member shall be as prescribed by the Minister.

R.S., 1985, c. N-5, s. 40;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Ministerial directions

41(1) The Chief of the Defence Staff shall exercise his authority under subsections 38(1) and (2) and 39(1) subject to any directions that may be given to him by the Minister for carrying the purposes and provisions of this section and sections 38 to 40 into effect.

Marginal note:Audit

(2) Non-public property accounts shall be audited as the Minister may from time to time direct.

Marginal note:Special provision

Service Estates

Marginal note:Collection, administration and distribution

42(1) The service estates of officers and non-commissioned members who die during their service in the Canadian Forces may be collected, administered and distributed in whole or in part as prescribed in regulations made by the Governor in Council.

Definition of service estate

(2) For the purposes of this section, but subject to any exceptions prescribed in regulations made by the Governor in Council, service estate means the following parts of the estate of a deceased officer or non-commissioned member mentioned in subsection (1):

(b) all other emoluments emanating from Her Majesty that, at the date of death, are due or otherwise payable;

(c) personal equipment that the deceased person is, under regulations, permitted to retain;

(d) personal or movable property, including cash, found on the deceased person or on a defence establishment or otherwise in the care or custody of the Canadian Forces; and

(e) in the case of an officer or non-commissioned member dying outside Canada, all other personal or movable property belonging to the deceased and situated outside Canada.

R.S., 1985, c. N-5, s. 42;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 11.

Presumption of Death

Marginal note:Authority to issue certificate

43 Where an officer or non-commissioned member disappears under circumstances that, in the opinion of the Minister or such other authorities as the Minister may designate, raise beyond reasonable doubt a presumption that the officer or non-commissioned member is dead, the Minister or any such other authority may issue a certificate declaring that the officer or non-commissioned member is deemed to be dead and stating the date on which the death is presumed to have occurred, and the officer or non-commissioned member shall thenceforth, for the purposes of this Act and the regulations and in relation to his status and service in the Canadian Forces, be deemed to have died on that date.

R.S., 1985, c. N-5, s. 43;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Personal Effects of Absentees

Marginal note:Vesting and disposal

44 The personal belongings and decorations of an officer or non-commissioned member who is absent without leave that are found in camp, quarters or otherwise in the care or custody of the Canadian Forces vest in Her Majesty and shall be disposed of in accordance with regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 44;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Boards of Inquiry

Marginal note:Convening boards

45(1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.

Marginal note:Powers

(2) A board of inquiry has, in relation to the matter before it, power

(a) to summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;

(c) to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and

(d) to examine any record and make any inquiry that the board considers necessary.

Marginal note:Access to on-board recordings

(3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.

Marginal note:Witness not excused from testifying

45.1(1) No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Marginal note:Answer not receivable

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

1998, c. 35, s. 14.

Cadet Organizations

Marginal note:Formation

46(1) The Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of persons of not less than twelve years of age who have not attained the age of nineteen years.

Marginal note:Training, administration, provision and command

(2) The cadet organizations referred to in subsection (1) shall be trained for such periods, administered in such manner and provided with materiel and accommodation under such conditions, and shall be subject to the authority and command of such officers, as the Minister may direct.

Marginal note:Not part of Canadian Forces

(3) The cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.

R.S., c. N-4, s. 43;

1974-75-76, c. 36, Sch. (DND) vote 1d, c. 66, s. 21.

Educational Institutions

Marginal note:Establishment

47(1) The Governor in Council, and any other authorities that are prescribed or appointed by the Governor in Council for that purpose, may in the interests of national defence establish institutions for the training and education of officers and non-commissioned members, officers and employees of the Department, candidates for enrolment in the Canadian Forces or for employment in the Department and other persons whose attendance has been authorized by or on behalf of the Minister.

Marginal note:Control and administration

(2) The institutions referred to in subsection (1) shall be governed and administered in the manner prescribed by the Minister.

R.S., 1985, c. N-5, s. 47;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 15.

Service Associations

Marginal note:Establishment

48(1) The Governor in Council may establish associations and organizations for purposes designed to further the defence of Canada.

Marginal note:Accommodation, materiel and facilities

(2) The Minister may authorize the provision of accommodation, materiel and facilities for the training, practice and use of the associations and organizations mentioned in subsection (1) and other associations and organizations designed to further the defence of Canada, whether or not the members of such associations and organizations are officers or non-commissioned members.

R.S., 1985, c. N-5, s. 48;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Exercise of Authority

Marginal note:Exercise of authority of officer or non-commissioned member by another

49 Any power or jurisdiction given to, and any act or thing to be done by, to or before any officer or non-commissioned member may be exercised by, or done by, to or before any other officer or non-commissioned member for the time being authorized in that behalf by regulations or according to the custom of the service.

R.S., 1985, c. N-5, s. 49;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Method of signifying orders

50 Orders made under this Act may be signified by an order, instruction or letter under the hand of any officer whom the authority that made those orders has authorized to issue orders on its behalf, and any order, instruction or letter purporting to be signed by any officer appearing therein to be so authorized is evidence that the officer is so authorized.

R.S., c. N-4, s. 47.

Notification of Orders

Marginal note:Publication

51(1) All regulations and all orders and instructions issued to the Canadian Forces shall be held to be sufficiently notified to any person whom they may concern by their publication, in the manner prescribed in regulations made by the Governor in Council, in the unit or other element in which that person is serving.

Marginal note:Registered mail

(2) All regulations and all orders and instructions relating to or in any way affecting an officer or non-commissioned member of the reserve force who is not serving with a unit or other element shall, when sent to the officer or non-commissioned member by registered mail, addressed to the latest known place of abode or business of the officer or non-commissioned member, be held to be sufficiently notified.

Marginal note:Saving provision

(3) Notwithstanding subsections (1) and (2), all regulations and all orders and instructions referred to in those subsections shall be held to be sufficiently notified to any person whom they may concern by their publication in the Canada Gazette.

R.S., 1985, c. N-5, s. 51;

R.S., 1985, c. 31 (1st Supp.), s. 60(E).

Validity of Documents

Marginal note:Authenticity of documents

52 A commission, appointment, warrant, order or instruction in writing purported to be granted, made or issued under this Act is evidence of its authenticity without proof of the signature or seal affixed thereto or the authority of the person granting, making or issuing it.

R.S., c. N-4, s. 49.

Marginal note:Signature on commissions

53(1) The Governor General may cause the signature of the Governor General to be affixed to a commission granted to an officer of the Canadian Forces by stamping the signature on the commission with a stamp approved by, and used for the purpose by authority of, the Governor General.

Marginal note:Validity of signature

(2) A signature affixed in accordance with subsection (1) is as valid and effectual as if it were in the handwriting of the Governor General, and neither its authenticity nor the authority of the person by whom it was affixed shall be called in question, except on behalf of Her Majesty.

R.S., c. N-4, s. 50.

Marginal note:Validity of bonds

54 Every bond to Her Majesty entered into by any person before a judge, a justice of the peace or an officer of the Canadian Forces, including a military judge, for the purpose of securing the payment of a sum of money or the performance of a duty or act required or authorized by this Act or by regulations is valid and may be enforced accordingly.

(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,

(ix) serving with any unit or other element of the regular force or the special force, or

(x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

(d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;

(e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;

(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;

(g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;

(i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and

(j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

Marginal note:Continuing liability

(2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).

Marginal note:Retention of status and rank

(3) Every person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1).

R.S., 1985, c. N-5, s. 60;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 19.

Marginal note:Persons accompanying Canadian Forces

61(1) For the purposes of this section and sections 60, 62 and 65, but subject to any limitations prescribed by the Governor in Council, a person accompanies a unit or other element of the Canadian Forces that is on service or active service if the person

(a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations;

(b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council;

(c) is a dependant outside Canada of an officer or non-commissioned member serving beyond Canada with that unit or other element; or

(d) is embarked on a vessel or aircraft of that unit or other element.

Marginal note:How persons accompanying Canadian Forces to be treated

(2) Subject to subsection (3), every person mentioned in paragraph 60(1)(f) who, while accompanying any unit or other element of the Canadian Forces, is alleged to have committed a service offence, shall be treated as a non-commissioned member.

Marginal note:Certificate entitling person to treatment as officer

(3) A person described in subsection (2) who holds, from the commanding officer of the unit or other element of the Canadian Forces that the person accompanies or from any other officer prescribed by the Minister for that purpose, a certificate entitling the person to be treated on the footing of an officer, revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, shall be treated as an officer in respect of any offence alleged to have been committed by the person while holding that certificate.

R.S., 1985, c. N-5, s. 61;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Command

62(1) Every person to whom subsection 61(2) or (3) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person accompanies.

Marginal note:Spies

(2) Every person described in paragraph 60(1)(h) shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces that may be holding the person in custody from time to time.

Marginal note:Released persons serving sentence

(3) Every person described in paragraph 60(1)(i) who is alleged to have committed, during the currency of the imprisonment or detention of that person, a service offence shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the service prison or detention barrack, as the case may be, in which that person is imprisoned or detained.

R.S., c. N-4, s. 55.

Marginal note:Persons under special engagement

63(1) Subject to subsection (2), every person mentioned in paragraph 60(1)(j) who, while serving with the Canadian Forces, is alleged to have committed a service offence shall be treated as a non-commissioned member.

Marginal note:Agreement entitling person to treatment as officer

(2) Where the terms of the agreement under which a person described in subsection (1) was engaged entitle the person to be treated as an officer, the person shall be treated as an officer.

Marginal note:Command where person under special engagement

(3) Every person to whom subsection (1) or (2) applies shall, for the purposes of the Code of Service Discipline, be deemed to be under the command of the commanding officer of the unit or other element of the Canadian Forces in which that person is serving.

Marginal note:Persons under command of officer deemed their superior officer

65(1) Every person subject to the Code of Service Discipline by virtue of paragraph 60(1)(f), (g), (i) or (j) shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person.

Marginal note:Prohibited interpretation

(2) Nothing in subsection (1) shall be construed as requiring any person described therein to bear arms or to participate in any active operations against the enemy.

R.S., c. N-4, s. 55.

Plea in Bar of Trial

Marginal note:Autrefois acquit and autrefois convict

66(1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person

(a) has been found not guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence; or

(b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.

Marginal note:Exception

(2) Nothing in subsection (1) affects the validity of a new trial held pursuant to section 249.11 or 249.16 or a new trial directed by a court having jurisdiction to do so.

Marginal note:Effect of other offences admitted at previous trial

(3) A person who under section 194 has been sentenced in respect of a service offence admitted by that person may not be tried by a service tribunal or a civil court in respect of that offence.

R.S., 1985, c. N-5, s. 66;

R.S., 1985, c. 31 (1st Supp.), s. 45;

1998, c. 35, s. 20.

Place of Commission of Offence

Marginal note:Service offence, wherever committed, is triable

67 Subject to section 70, every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, whether the alleged offence was committed in Canada or outside Canada.

R.S., c. N-4, s. 57.

Place of Trial

Marginal note:No territorial limitation

68 Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada.

R.S., c. N-4, s. 58.

Period of Liability

Marginal note:When person is liable

69(1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.

Marginal note:Sections 130 and 132

(2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.

Marginal note:Attempts

(2) Every person who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.

Marginal note:Common intention

(3) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence.

R.S., c. N-4, s. 62.

Civil Defences

Marginal note:Rules and principles of civil courts applicable

72.1 All rules and principles that are followed from time to time in the civil courts and that would render any circumstance a justification or excuse for any act or omission or a defence to any charge are applicable in any proceedings under the Code of Service Discipline.

2013, c. 24, s. 15.

Ignorance of the Law

Marginal note:Ignorance not to constitute excuse

72.2 The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

2013, c. 24, s. 15.

Misconduct of Commanders in Presence of Enemy

Marginal note:Offences by commanders when in action

73 Every officer in command of a vessel, aircraft, defence establishment, unit or other element of the Canadian Forces who

(a) when under orders to carry out an operation of war or on coming into contact with an enemy that it is the duty of the officer to engage, does not use his utmost exertion to bring the officers and non-commissioned members under his command or his vessel, aircraft or other materiel into action,

(b) being in action, does not, during the action, in the officer’s own person and according to the rank of the officer, encourage his officers and non-commissioned members to fight courageously,

(c) when capable of making a successful defence, surrenders his vessel, aircraft, defence establishment, materiel, unit or other element of the Canadian Forces to the enemy,

is guilty of an offence and on conviction, if the officer acted traitorously, shall be sentenced to imprisonment for life, if the officer acted from cowardice, is liable to imprisonment for life or less punishment, and in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

(j) does or omits to do anything with intent to imperil the success of any of Her Majesty’s Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

R.S., 1985, c. N-5, s. 74;

1998, c. 35, s. 25.

Security

Marginal note:Offences related to security

(a) improperly holds communication with or gives intelligence to the enemy,

(b) without authority discloses in any manner whatever any information relating to the numbers, position, materiel, movements, preparations for movements, operations or preparations for operations of any of Her Majesty’s Forces or of any forces cooperating therewith,

(c) without authority discloses in any manner whatever any information relating to a cryptographic system, aid, process, procedure, publication or document of any of Her Majesty’s Forces or of any forces cooperating therewith,

(d) makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it,

(e) gives a parole, watchword, password, countersign or identification signal different from that which he received,

(f) without authority alters or interferes with any identification or other signal,

(j) does or omits to do anything with intent to prejudice the security of any of Her Majesty’s Forces or of any forces cooperating therewith,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

Prisoners of War

Marginal note:Offences related to prisoners of war

(a) by want of due precaution, or through disobedience of orders or wilful neglect of duty, is made a prisoner of war,

(b) having been made a prisoner of war, fails to rejoin Her Majesty’s service when able to do so, or

(c) having been made a prisoner of war, serves with or aids the enemy,

is guilty of an offence and on conviction, if the person acted traitorously, shall be sentenced to imprisonment for life, and in any other case, is liable to imprisonment for life or to less punishment.

Miscellaneous Operational Offences

Marginal note:Offences related to operations

(a) does violence to any person bringing materiel to any of Her Majesty’s Forces or to any forces cooperating therewith,

(b) irregularly detains any materiel being conveyed to any unit or other element of Her Majesty’s Forces or of any forces cooperating therewith,

(c) irregularly appropriates to the unit or other element of the Canadian Forces with which the person is serving any materiel being conveyed to any other unit or element of Her Majesty’s Forces or of any forces cooperating therewith,

(d) without orders from the person’s superior officer, improperly destroys or damages any property,

(f) commits any offence against the property or person of any inhabitant or resident of a country in which he is serving,

(g) steals from, or with intent to steal searches, the person of any person killed or wounded, in the course of warlike operations,

(h) steals any money or property that has been left exposed or unprotected in consequence of warlike operations, or

(i) takes otherwise than for the public service any money or property abandoned by the enemy,

is guilty of an offence and on conviction, if the person committed the offence on active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

R.S., c. N-4, s. 67.

Spies for the Enemy

Marginal note:Offence of being spy

78 Every person who spies for the enemy is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., 1985, c. N-5, s. 78;

1998, c. 35, s. 28.

Mutiny

Marginal note:Mutiny with violence

79 Every person who joins in a mutiny that is accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., 1985, c. N-5, s. 79;

1998, c. 35, s. 28.

Marginal note:Mutiny without violence

80 Every person who joins in a mutiny that is not accompanied by violence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding fourteen years or to less punishment or, in the case of a ringleader of the mutiny, to imprisonment for life or to less punishment.

Marginal note:Offences related to mutiny

(c) being present, does not use his utmost endeavours to suppress a mutiny, or

(d) being aware of an actual or intended mutiny, does not without delay inform his superior officer thereof,

is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., c. N-4, s. 71.

Seditious Offences

Marginal note:Advocating governmental change by force

82 Every person who publishes or circulates any writing, printing or document in which is advocated, or who teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change within Canada is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., c. N-4, s. 72.

Insubordination

Marginal note:Disobedience of lawful command

83 Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., c. N-4, s. 73.

Marginal note:Striking or offering violence to a superior officer

84 Every person who strikes or attempts to strike, or draws or lifts up a weapon against, or uses, attempts to use or offers violence against, a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

R.S., c. N-4, s. 74.

Marginal note:Insubordinate behaviour

85 Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

(b) strikes or uses or offers violence to any other person in whose custody he is placed, whether or not that other person is his superior officer and whether or not that other person is subject to the Code of Service Discipline,

(c) resists an escort whose duty it is to apprehend him or to have him in charge, or

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 77.

Desertion

Marginal note:Offence

88(1) Every person who deserts or attempts to desert is guilty of an offence and on conviction, if the person committed the offence on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

Marginal note:Definition

(a) being on or having been warned for active service, duty during an emergency or other important service, is absent without authority with the intention of avoiding that service;

(b) having been warned that his vessel is under sailing orders, is absent without authority with the intention of missing that vessel;

(c) absents himself without authority from his place of duty with the intention of remaining absent from his place of duty;

(d) is absent without authority from his place of duty and at any time during such absence forms the intention of remaining absent from his place of duty; or

(e) while absent with authority from his place of duty, with the intention of remaining absent from his place of duty, does any act or omits to do anything the natural and probable consequence of which act or omission is to preclude the person from being at his place of duty at the time required.

Marginal note:Presumption of desertion

(3) A person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of remaining absent from his place of duty.

Marginal note:Definition

(c) having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized.

R.S., c. N-4, s. 80.

Marginal note:False statement in respect of leave

91 Every person who knowingly makes a false statement in respect of prolongation of leave of absence is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 81.

Disgraceful Conduct

Marginal note:Scandalous conduct by officers

92 Every officer who behaves in a scandalous manner unbecoming an officer is guilty of an offence and on conviction shall suffer dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service.

R.S., c. N-4, s. 82.

Marginal note:Cruel or disgraceful conduct

93 Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

R.S., c. N-4, s. 83.

Marginal note:Traitorous or disloyal utterances

94 Every person who uses traitorous or disloyal words regarding Her Majesty is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

R.S., c. N-4, s. 84.

Marginal note:Abuse of subordinates

95 Every person who strikes or otherwise ill-treats any person who by reason of rank or appointment is subordinate to him is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

(a) makes a false accusation against an officer or non-commissioned member, knowing the accusation to be false, or

(b) when seeking redress under section 29, knowingly makes a false statement affecting the character of an officer or non-commissioned member or knowingly, in respect of the redress so sought, suppresses any material fact

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., 1985, c. N-5, s. 96;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Drunkenness

97(1) Drunkenness is an offence and every person convicted thereof is liable to imprisonment for less than two years or to less punishment, except that, where the offence is committed by a non-commissioned member who is not on active service or on duty or who has not been warned for duty, no punishment of imprisonment, and no punishment of detention for a term in excess of ninety days, shall be imposed.

Marginal note:When committed

(2) For the purposes of subsection (1), the offence of drunkenness is committed where a person, owing to the influence of alcohol or a drug,

(a) is unfit to be entrusted with any duty that the person is or may be required to perform; or

(b) behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.

R.S., 1985, c. N-5, s. 97;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Malingering, aggravating disease or infirmity or injuring self or another

(b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

(c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,

is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

R.S., c. N-4, s. 88.

Offences in relation to Service Arrest and Custody

Marginal note:Detaining unnecessarily or failing to bring up for investigation

99 Every person who unnecessarily detains any other person in arrest or confinement without bringing him to trial, or fails to bring that other person’s case before the proper authority for investigation, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 89.

Marginal note:Setting free without authority or allowing or assisting escape

(a) without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody,

(b) negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody, or

(c) assists any person in escaping or in attempting to escape from custody,

is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for a term not exceeding seven years or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 90.

Marginal note:Escape from custody

101 Every person who, being in arrest or confinement or in prison or otherwise in lawful custody, escapes or attempts to escape is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 91.

Marginal note:Failure to comply with conditions

101.1 Every person who, without lawful excuse, fails to comply with a condition imposed under Division 3, or a condition of an undertaking given under Division 3 or 10, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

1998, c. 35, s. 29.

Marginal note:Hindering arrest or confinement or withholding assistance when called on

(a) resists or wilfully obstructs an officer or non-commissioned member in the performance of any duty pertaining to the arrest, custody or confinement of a person subject to the Code of Service Discipline, or

(b) when called on, refuses or neglects to assist an officer or non-commissioned member in the performance of any such duty

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., 1985, c. N-5, s. 102;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Withholding delivery over or assistance to civil power

103 Every person who neglects or refuses to deliver over an officer or non-commissioned member to the civil power, pursuant to a warrant in that behalf, or to assist in the lawful apprehension of an officer or non-commissioned member accused of an offence punishable by a civil court is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., 1985, c. N-5, s. 103;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Offences in relation to Vessels

Marginal note:Losing, stranding or hazarding vessels

104 Every person who wilfully or negligently or through other default loses, strands or hazards, or suffers to be lost, stranded or hazarded, any of Her Majesty’s Canadian ships or other vessels of the Canadian Forces is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Marginal note:Disobedience of captain’s orders

106(1) Every person who, when in a ship, disobeys any lawful command given by the captain of the ship in relation to the navigation or handling of the ship or affecting the safety of the ship, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Marginal note:Command in ship

(2) For the purposes of this section, every person of whatever rank shall, when the person is in a ship, be under the command, in respect of all matters relating to the navigation or handling of the ship or affecting the safety of the ship, of the captain of the ship, whether or not the captain is subject to the Code of Service Discipline.

R.S., c. N-4, s. 96.

Offences in relation to Aircraft

Marginal note:Wrongful acts in relation to aircraft or aircraft material

(a) in the use of or in relation to any aircraft or aircraft material, wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause loss of life or bodily injury to any person,

(b) wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission results or is likely to result in damage to or destruction or loss of any of Her Majesty’s aircraft or aircraft material or of aircraft or aircraft material of any forces cooperating with Her Majesty’s Forces, or

(c) during a state of war wilfully or negligently causes the sequestration by or under the authority of a neutral state or the destruction in a neutral state of any of Her Majesty’s aircraft or of aircraft of any forces cooperating with Her Majesty’s Forces,

is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 97.

Marginal note:Signing inaccurate certificate

108 Every person who signs an inaccurate certificate in relation to an aircraft or aircraft material without taking reasonable steps to ensure that it was accurate, the proof of taking which steps lies on that person, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 98.

Marginal note:Low flying

109 Every person who flies an aircraft at a height less than the minimum height authorized in the circumstances is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 99.

Marginal note:Disobedience of captain’s orders

110(1) Every person who, when in an aircraft, disobeys any lawful command given by the captain of the aircraft in relation to the flying or handling of the aircraft or affecting the safety of the aircraft, whether or not the captain is subject to the Code of Service Discipline, is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.

Marginal note:Command in aircraft

(a) every person of whatever rank shall, when the person is in an aircraft, be under the command, in respect of all matters relating to the flying or handling of the aircraft or affecting the safety of the aircraft, of the captain of the aircraft, whether or not the captain is subject to the Code of Service Discipline; and

(b) if the aircraft is a glider and is being towed by another aircraft, the captain of the glider shall, so long as the glider is being towed, be under the command, in respect of all matters relating to the flying or handling of the glider or affecting the safety of the glider, of the captain of the towing aircraft, whether or not the captain of the towing aircraft is subject to the Code of Service Discipline.

R.S., c. N-4, s. 100.

Offences in relation to Vehicles

Marginal note:Improper driving of vehicles

(a) drives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or, having charge of and being in or on such a vehicle, causes or by wilful neglect permits it to be so driven,

(b) while the person’s ability to drive a vehicle of the Canadian Forces is impaired by alcohol or a drug, drives or attempts to drive such a vehicle, whether it is in motion or not, or

(c) having charge of a vehicle of the Canadian Forces, knowingly permits it to be driven by a person whose ability to drive such a vehicle is impaired by alcohol or a drug,

is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment.

Marginal note:Occupant of driver’s seat deemed attempting to drive

(2) For the purposes of paragraph (1)(b), a person who occupies the seat ordinarily occupied by a driver of a vehicle shall be deemed to have attempted to drive the vehicle, unless that person establishes that he did not enter or mount the vehicle for the purpose of setting it in motion.

Marginal note:Improper use of vehicles

(a) uses a vehicle of the Canadian Forces for an unauthorized purpose,

(b) without authority uses a vehicle of the Canadian Forces for any purpose, or

(c) uses a vehicle of the Canadian Forces contrary to any regulation, order or instruction,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 102.

Offences in relation to Property

Marginal note:Causing fires

113 Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 103.

Marginal note:Stealing

114(1) Every person who steals is guilty of an offence and on conviction, if by reason of the person’s rank, appointment or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding seven years or to less punishment.

Marginal note:Definition

(a) stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, any thing capable of being stolen, with intent

(i) to deprive, temporarily or absolutely, the owner of it or a person who has a special property or interest in it, of the thing or of that property or interest,

(iii) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or

(iv) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time when it was taken and converted;

(b) stealing is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it;

(c) the taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment; and

(d) it is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person who converts it.

Marginal note:When movable inanimate things capable of being stolen

(3) Every inanimate thing that is the property of any person and that either is or may be made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order that it may be stolen.

R.S., c. N-4, s. 104.

Marginal note:Receiving

115 Every person who receives or retains in his possession any property obtained by the commission of any service offence, knowing the property to have been so obtained, is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

R.S., c. N-4, s. 105.

Marginal note:Destruction, damage, loss or improper disposal

(a) wilfully destroys or damages, loses by neglect, improperly sells or wastefully expends any public property, non-public property or property of any of Her Majesty’s Forces or of any forces cooperating therewith,

(b) wilfully destroys, damages or improperly sells any property belonging to another person who is subject to the Code of Service Discipline, or

(c) sells, pawns or otherwise disposes of any cross, medal, insignia or other decoration granted by or with the approval of Her Majesty,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 106.

Marginal note:Miscellaneous offences

(a) connives at the exaction of an exorbitant price for property purchased or rented by a person supplying property or services to the Canadian Forces,

(b) improperly demands or accepts compensation, consideration or personal advantage in respect of the performance of any military duty or in respect of any matter relating to the Department or the Canadian Forces,

(c) receives directly or indirectly, whether personally or by or through any member of his family or person under his control, or for his benefit, any gift, loan, promise, compensation or consideration, either in money or otherwise, from any person, for assisting or favouring any person in the transaction of any business relating to any of Her Majesty’s Forces, or to any forces cooperating therewith or to any mess, institute or canteen operated for the use and benefit of members of those forces,

(d) demands or accepts compensation, consideration or personal advantage for convoying a vessel entrusted to his care,

(e) being in command of a vessel or aircraft, takes or receives on board goods or merchandise that he is not authorized to take or receive on board, or

(f) commits any act of a fraudulent nature not particularly specified in sections 73 to 128,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., 1985, c. N-5, s. 117;

1998, c. 35, s. 31.

Offences in relation to Tribunals

Definition of tribunal

118(1) For the purposes of this section and section 119, tribunal includes, in addition to a service tribunal, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act and any inquiry committee established under regulations.

Marginal note:Failure to appear or attend

118.1 Every person who, being duly summoned or ordered to appear as an accused before a service tribunal, fails, without lawful excuse, the proof of which lies on the person, to appear as summoned or ordered, or to remain in attendance, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

1998, c. 35, s. 32.

Marginal note:False evidence

119 Every person who, when examined on oath or solemn affirmation before a tribunal, knowingly gives false evidence is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

R.S., 1985, c. N-5, s. 119;

1998, c. 35, s. 32.

Offence in Relation to the Sex Offender Information Registration Act

Marginal note:Failure to comply with order or obligation

119.1(1) Every person who, without reasonable excuse, fails to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:Reasonable excuse

(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.

Marginal note:Proof of certain facts by certificate

(3) In proceedings under subsection (1), a certificate of a person referred to in paragraph 16(2)(b.1) of the Sex Offender Information Registration Act stating that the person named in the certificate failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Attendance and cross-examination

(4) The person named in the certificate may, with the leave of the court martial, require the attendance of the person who signed it for the purpose of cross-examination.

Marginal note:Notice of intention to produce

(5) A certificate is not to be received in evidence unless, before the commencement of the trial, the party who intends to produce it gives the person named in the certificate a copy of it and reasonable notice of their intention to produce it.

Offence in Relation to DNA Identification

Marginal note:Failure to comply with order or summons

119.2(1) Every person who, without reasonable excuse, fails to comply with an order made under subsection 196.14(4) or 196.24(4) of this Act or subsection 487.051(4) or 487.055(3.11) of the Criminal Code, or with a summons referred to in subsection 487.055(4) or 487.091(3) of the Criminal Code, is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:For greater certainty

(2) For greater certainty, a lawful command that prevents a person from complying with an order or summons is a reasonable excuse.

2007, c. 22, ss. 34, 49.

Offences in relation to Billeting

Marginal note:Ill-treatment or non-payment of occupant or person on whom billeted

(a) ill-treats, by violence, extortion or making disturbance in billets or otherwise, any occupant of a house in which any person is billeted or of any premises in which accommodation for materiel has been provided, or

(b) fails to comply with regulations in respect of payment of the just demands of the person on whom he or any officer or non-commissioned member under his command is or has been billeted or the occupant of premises on which materiel is or has been accommodated,

is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., 1985, c. N-5, s. 120;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Offences in relation to Enrolment

Marginal note:Fraudulent enrolment

121 Every person who, having been released from Her Majesty’s Forces by reason of a sentence of a service tribunal or by reason of misconduct, has afterwards been enrolled in the Canadian Forces without declaring the circumstances of that release is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

Marginal note:False answers or false information

in relation to the enrolment of that person is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 112.

Marginal note:Assisting unlawful enrolment

123 Every person who is concerned in the enrolment of any other person and who knows or has reasonable grounds to believe that by being enrolled that other person commits an offence under this Act is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 113.

Miscellaneous Offences

Marginal note:Negligent performance of duties

124 Every person who negligently performs a military duty imposed on that person is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

R.S., c. N-4, s. 114.

Marginal note:Offences in relation to documents

(a) wilfully or negligently makes a false statement or entry in a document made or signed by that person and required for official purposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof,

(b) when signing a document required for official purposes, leaves in blank any material part for which the signature is a voucher, or

(c) with intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any military or departmental purpose,

is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding three years or to less punishment.

126 Every person who, on receiving an order to submit to inoculation, re-inoculation, vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, wilfully and without reasonable excuse disobeys that order is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

127 Every person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions does any act or omits to do anything, in relation to any thing or substance that may be dangerous to life or property, which act or omission causes or is likely to cause loss of life or bodily injury to any person or damage to or destruction of any property, is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 117.

Marginal note:Conspiracy

128 Every person who conspires with any other person, whether or not that other person is subject to the Code of Service Discipline, to commit an offence under the Code of Service Discipline is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding seven years or to less punishment.

R.S., c. N-4, s. 118.

Conduct to the Prejudice of Good Order and Discipline

Marginal note:Prejudicing good order or discipline

129(1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

Marginal note:Offence and contraventions prejudicial to good order and discipline

(2) An act or omission constituting an offence under section 72 or a contravention by any person of

(b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or

(c) any general, garrison, unit, station, standing, local or other orders,

is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

Marginal note:Attempts to commit offences

(3) An attempt to commit any of the offences prescribed in sections 73 to 128 is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

Marginal note:Saving provision

(4) Nothing in subsection (2) or (3) affects the generality of subsection (1).

Marginal note:Not intended to cover offences elsewhere provided for

(5) No person may be charged under this section with any offence for which special provision is made in sections 73 to 128 but the conviction of a person so charged is not invalid by reason only of the charge being in contravention of this subsection unless it appears that an injustice has been done to the person charged by reason of the contravention.

Marginal note:Officer’s responsibility not affected

(6) The responsibility of any officer for the contravention of subsection (5) is not affected by the validity of any conviction on the charge in contravention of that subsection.

(i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or

(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.

Marginal note:Code of Service Discipline applies

(3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).

Marginal note:Saving provision

(4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.

R.S., 1985, c. N-5, s. 130;

1998, c. 35, ss. 33, 92.

Marginal note:Reference to Attorney General

131 For the purposes of this Act, a reference in the definition analyst or qualified technician in subsection 254(1) of the Criminal Code to the “Attorney General” includes the Attorney General of Canada.

R.S., 1985, c. N-5, s. 131;

R.S., 1985, c. 27 (1st Supp.), s. 187.

Marginal note:Offences under law applicable outside Canada

132(1) An act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Division, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).

Marginal note:Punishment for offence under law applicable outside Canada

(2) Subject to subsection (3), where a service tribunal finds a person guilty of an offence under subsection (1), the service tribunal shall impose the punishment in the scale of punishments that it considers appropriate, having regard to the punishment prescribed by the law applicable in the place where the act or omission occurred and the punishment prescribed for the same or a similar offence in this Act, the Criminal Code or any other Act of Parliament.

Marginal note:Application of Code of Service Discipline

(3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under subsection (2).

Marginal note:Saving provision

(4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 130 and to impose the punishment for that offence described in the section prescribing that offence.

Marginal note:Contravention of customs laws

(5) Where an act or omission constituting an offence under subsection (1) contravenes the customs laws applicable in the place where the offence was committed, any officer appointed under the regulations for the purposes of this section may seize and detain any goods by means of or in relation to which the officer believes on reasonable grounds that the offence was committed and, if any person is convicted of the offence under subsection (1), the goods may, in accordance with regulations made by the Governor in Council, be forfeited to Her Majesty and may be disposed of as provided by those regulations.

R.S., 1985, c. N-5, s. 132;

1998, c. 35, ss. 34, 92.

Conviction of Cognate Offence

Marginal note:Person charged with desertion

133(1) A person charged with desertion may be found guilty of attempting to desert or of being absent without leave.

Marginal note:Person charged with attempt to desert

(2) A person charged with attempting to desert may be found guilty of being absent without leave.

R.S., c. N-4, s. 122.

Marginal note:Person charged with violent offence against officer

134(1) A person charged with any one of the offences prescribed in section 84 may be found guilty of any other offence prescribed in that section.

Marginal note:Person charged with insubordinate behaviour

(2) A person charged with any one of the offences prescribed in section 85 may be found guilty of any other offence prescribed in that section.

135 A person charged with a service offence may, on failure of proof of an offence having been committed under circumstances involving a higher punishment, be found guilty of the same offence as having been committed under circumstances involving a lower punishment.

R.S., c. N-4, s. 122.

Marginal note:Powers on service trial of civil offences

136 Where a person is charged with an offence under section 130 and the charge is one on which he might, in the event of trial by a civil court in Canada for that offence, have been found guilty of any other offence, the person may be found guilty of that other offence.

R.S., c. N-4, s. 122.

Marginal note:Offence charged, attempt proved

137(1) If the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be found guilty of the attempt.

Marginal note:Attempt charged, full offence proved

(2) If, in the case of a summary trial, an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused person is not entitled to be acquitted, but may be found guilty of the attempt unless the officer presiding at the trial does not make a finding on the charge and directs that the accused person be charged with the complete offence.

Marginal note:Conviction a bar

(3) An accused person who is found guilty under subsection (2) of an attempt to commit an offence is not liable to be tried again for the offence that they were charged with attempting to commit.

Marginal note:Where tribunal may make special finding of guilty

(a) the facts proved in respect of an offence being tried by it differ materially from the facts alleged in the statement of particulars but are sufficient to establish the commission of the offence charged, and

(b) the difference between the facts proved and the facts alleged in the statement of particulars has not prejudiced the accused person in his defence,

the tribunal may, instead of making a finding of not guilty, make a special finding of guilty and, in doing so, shall state the differences between the facts proved and the facts alleged in the statement of particulars.

R.S., c. N-4, s. 124.

Punishments

Marginal note:Scale of punishments

139(1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

(2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.

R.S., 1985, c. N-5, s. 139;

1998, c. 35, s. 35.

Marginal note:Imprisonment for shorter term

140 Every person who, on conviction of a service offence, is liable to imprisonment for life, other than as a minimum punishment, or for a term of years or other term may be sentenced to imprisonment for a shorter term.

R.S., 1985, c. N-5, s. 140;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 36.

Marginal note:Dismissal as accompanying punishment

140.1(1) Where a court martial imposes a punishment of imprisonment for life or for two years or more on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal with disgrace from Her Majesty’s service or a punishment of dismissal from Her Majesty’s service.

Marginal note:Dismissal as accompanying punishment

(2) Where a court martial imposes a punishment of imprisonment for less than two years on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of dismissal from Her Majesty’s service.

1998, c. 35, s. 36.

Marginal note:Reduction in rank as accompanying punishment

140.2 Where a court martial imposes a punishment of imprisonment on an officer or a non-commissioned member, the court martial may in addition, notwithstanding any other provision of this Division, impose a punishment of reduction in rank, that may be

Marginal note:Dismissal with disgrace

141(1) Where a service tribunal imposes a punishment of dismissal with disgrace from Her Majesty’s service on an officer or non-commissioned member, the service tribunal may in addition, notwithstanding any other provision of this Division, impose a punishment of imprisonment for less than two years.

Marginal note:Effective date of dismissal

(1.1) A punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is deemed to be carried out as of the date on which the release of an officer or a non-commissioned member from the Canadian Forces is effected.

Marginal note:Consequences

(2) A person on whom a punishment of dismissal with disgrace from Her Majesty’s service has been carried out is not, except in an emergency or unless that punishment is subsequently set aside or altered, eligible to serve Her Majesty again in any military or civil capacity.

R.S., 1985, c. N-5, s. 141;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, ss. 37, 92.

Marginal note:Detention

142(1) The punishment of detention is subject to the following conditions:

(a) detention may not exceed ninety days and a person sentenced to detention may not be subject to detention for more than ninety days consecutively by reason of more than one conviction; and

Marginal note:Restrictions

(a) involve reduction to a rank lower than that to which under regulations the offender can be reduced; and

(b) in the case of a commissioned officer, involve reduction to a rank lower than commissioned rank.

R.S., 1985, c. N-5, s. 143;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Forfeiture of seniority

144 Where a court martial imposes a punishment of forfeiture of seniority on an officer or non-commissioned member, the court martial shall in passing sentence specify the period for which seniority is to be forfeited.

Marginal note:Fine

Marginal note:Terms of payment

(2) The terms of payment of a fine are in the discretion of the service tribunal that imposes the fine.

Marginal note:Variation of terms of payment

(3) The terms of payment of a fine may be varied, in the case of a summary trial, by the officer who conducted the trial, and in the case of a court martial, by the military judge who imposed the fine or a military judge designated by the Chief Military Judge.

R.S., 1985, c. N-5, s. 145;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 39.

Marginal note:Civil enforcement of fines

145.1(1) If an offender is in default of payment of a fine, the Minister may, in addition to any other method provided by law for recovering the fine, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in any court in Canada that has jurisdiction to enter a judgment for that amount.

Marginal note:Effect of filing order

(2) A judgment that is entered under this section is enforceable in the same manner as if it were a judgment obtained by the Minister in civil proceedings.

2013, c. 24, s. 21.

Marginal note:Minor punishments

146 Minor punishments shall be such as are prescribed in regulations made by the Governor in Council.

R.S., c. N-4, s. 125.

Marginal note:Limitation

147 The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor in Council.

R.S., c. N-4, s. 125.

Prohibition Orders

Marginal note:Prohibition order

(a) in the commission of which violence against a person was used, threatened or attempted,

(b) that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance,

(d) that is punishable under section 130 and that is described in paragraph 109(1)(b) of the Criminal Code,

the court martial shall, in addition to any other punishment that may be imposed for that offence, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court martial decides that it is so desirable, the court martial shall so order.

Marginal note:Duration of prohibition order

(2) An order made under subsection (1) begins on the day the order is made and ends on the day specified in the order.

Marginal note:Application of order

(3) Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the perform­ance of their duties.

Marginal note:Notification

(4) A court martial that makes an order under subsection (1) shall without delay cause the Registrar of Firearms appointed under section 82 of the Firearms Act to be notified of the order.

Marginal note:Requirement to surrender

147.2 A court martial that makes an order under subsection 147.1(1) may, in the order, require the person against whom the order is made to surrender to an officer or non-commissioned member appointed under the regulations for the purposes of section 156, or to the person’s commanding officer,

(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and

(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,

and where the court martial does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 of the Criminal Code does not apply to that person.

1995, c. 39, s. 176.

Marginal note:Forfeiture

147.3(1) Unless an order made under subsection 147.1(1) specifies otherwise, every thing the possession of which is prohibited by the order that, on the commencement of the order, is in the possession of the person against whom the order is made is forfeited to Her Majesty.

Marginal note:Disposal

(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Minister directs.

1995, c. 39, s. 176.

Marginal note:Authorizations revoked or amended

147.4 Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by an order made under subsection 147.1(1) and issued to a person against whom the order is made is, on the commencement of the order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

1995, c. 39, s. 176.

Marginal note:Return to owner

147.5 Where the Minister is, on application for an order under this section, satisfied that a person, other than the person against whom an order under subsection 147.1(1) was made,

(a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 147.3(1) and is lawfully entitled to possess it, and

(b) had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the order was made,

the Minister shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner, or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

1995, c. 39, s. 176.

Sentences

Marginal note:One sentence only to be passed

148 Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

R.S., c. N-4, s. 126.

Incarceration under more than one Sentence

Marginal note:Concurrent punishment

149 Where a person is under a sentence imposed by a service tribunal that includes a punishment involving incarceration and another service tribunal subsequently passes a new sentence that also includes a punishment involving incarceration, both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.

Punishment for Certain Offences

Marginal note:Punishment for certain offences

149.2(1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.

Marginal note:Offender must be notified

(2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity.

Interpretation

Marginal note:Definitions

(a) the officer who is the person’s commanding officer, or an officer who is designated by that officer; or

(b) if it is not practical for an officer referred to in paragraph (a) to act as the custody review officer, the officer who is the commanding officer of the unit or element where the person is in custody or an officer who is designated by that officer. (officier réviseur)

(iii) an offence of conspiring to commit an offence under any subsection referred to in subparagraph (ii);

(b) an offence under this Act where the minimum punishment is imprisonment for life;

(c) an offence under this Act for which a punishment higher in the scale of punishments than imprisonment for less than two years may be awarded that is alleged to have been committed while at large after having been released in respect of another offence pursuant to the provisions of this Division or Division 10;

(d) an offence under this Act that is a criminal organization offence; or

(e) an offence under this Act that is a terrorism offence. (infraction désignée)

Authority to Arrest

Marginal note:General authority

154(1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

Marginal note:Reasonably necessary force

(2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

R.S., 1985, c. N-5, s. 154;

R.S., 1985, c. 31 (1st Supp.), s. 48;

1998, c. 35, s. 92.

Marginal note:Powers of officers

155(1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

Marginal note:Powers of non-commissioned members

(b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

Marginal note:Arrest of persons other than officers or non-commissioned members

(3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.

R.S., 1985, c. N-5, s. 155;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Powers of military police

156 Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may

(a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

(b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 156;

R.S., 1985, c. 31 (1st Supp.), ss. 49, 60;

1998, c. 35, s. 41.

Marginal note:Issue of warrants

157(1) Subject to subsection (2), every commanding officer, and every officer to whom the power of trying a charge summarily has been delegated under subsection 163(4), may by a warrant under his hand authorize any person to arrest any other person triable under the Code of Service Discipline who

Marginal note:Limitation

(2) An officer authorized to issue a warrant under this section shall not, unless the officer has certified on the face of the warrant that the exigencies of the service so require, issue a warrant for the arrest of any officer of rank higher than the rank held by the officer so authorized.

Marginal note:Contents of warrants

(3) In any warrant issued under this section, the offence in respect of which the warrant is issued shall be stated and the names of more persons than one in respect of the same offence, or several offences of the same nature, may be included.

Marginal note:Saving provision

(4) Nothing in this section shall be deemed to be in derogation of the authority that any person, including an officer or non-commissioned member, may have under other sections of this Act or otherwise under the law of Canada to arrest any other person without a warrant.

R.S., 1985, c. N-5, s. 157;

R.S., 1985, c. 31 (1st Supp.), ss. 50, 60.

Action following Arrest

Marginal note:Release from custody

158(1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

(c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

(d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;

(e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

(f) the necessity to ensure the safety of the person under arrest or any other person.

Marginal note:Retention in custody

(2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

Marginal note:Duty to receive into service custody

(3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

Marginal note:Account in writing

(4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

Marginal note:Report of custody

158.1(1) The officer or non-commissioned member into whose custody a person under arrest is committed shall, as soon as practicable, and in any case within twenty-four hours after the arrest of the person committed to custody, deliver a report of custody, in writing, to the custody review officer.

Marginal note:Contents

(2) The report of custody must set out the name of the person in custody, an account of the offence alleged to have been committed by that person so far as it is known and the name and rank, if any, of the person who committed the person into service custody.

Marginal note:Representations concerning release

(3) Before the report of custody is delivered to the custody review officer,

(a) a copy of the report and the account in writing must be provided to the person in custody; and

(b) the person in custody must be given the opportunity to make representations concerning the person’s release from custody.

Marginal note:Representations to be reduced to writing

(4) Representations concerning release made by or on behalf of the person in custody must be reduced to writing or recorded by any other means.

Marginal note:Accompanying documents

(5) When the report of custody is delivered, it must be accompanied by the account in writing and any representations made by or on behalf of the person in custody or a statement confirming that the person was given the opportunity to make representations but did not do so.

1998, c. 35, s. 42.

Initial Review

Marginal note:Review of report of custody

158.2(1) The custody review officer shall review the report of custody and the accompanying documents as soon as practicable after receiving them and in any case within forty-eight hours after the arrest of the person committed to custody.

Marginal note:Duty to release

(2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1).

1998, c. 35, s. 42.

Marginal note:Continuing duty to release

158.3 If, at any time after receiving the report of custody and before the person in custody is brought before a military judge, the custody review officer no longer believes that the grounds to retain the person in custody exist, the custody review officer shall direct that the person be released from custody.

1998, c. 35, s. 42.

Marginal note:Duty to retain in custody if designated offence

158.4 Notwithstanding subsection 158.2(2) and section 158.3, if the person in custody is charged with having committed a designated offence, the custody review officer shall direct that the person be retained in custody.

1998, c. 35, s. 42.

Marginal note:Duty to review where charge not laid

158.5 If a charge is not laid within seventy-two hours after the person in custody was arrested, the custody review officer shall determine why a charge has not been laid and reconsider whether it remains necessary to retain the person in custody.

1998, c. 35, s. 42.

Marginal note:Release with or without conditions

158.6(1) The custody review officer may direct that the person be released without conditions or that the person be released and, as a condition of release, direct the person to comply with any of the following conditions:

Marginal note:Review

(2) A direction to release a person with or without conditions may, on application, be reviewed by

(a) if the custody review officer is an officer designated by a commanding officer, that commanding officer; or

(b) if the custody review officer is a commanding officer, the next superior officer to whom the commanding officer is responsible in matters of discipline.

Marginal note:Powers

(3) After giving a representative of the Canadian Forces and the released person an opportunity to be heard, the officer conducting the review may make any direction respecting conditions that a custody review officer may make under subsection (1).

Review by Military Judge

Marginal note:Hearing by military judge

159(1) A custody review officer who does not direct the release of a person from custody shall, as soon as practicable, cause the person to be taken before a military judge for the purpose of a hearing to determine whether the person is to be retained in custody.

Marginal note:Applicable operational considerations

(2) In determining when it is practicable to cause the person to be taken before a military judge, the custody review officer may have regard to the constraints of military operations, including the location of the unit or element where the person is in custody and the circumstances under which it is deployed.

R.S., 1985, c. N-5, s. 159;

R.S., 1985, c. 31 (1st Supp.), s. 52;

1998, c. 35, s. 42.

Marginal note:Onus on Canadian Forces

159.1 When the person retained in custody is taken before a military judge, the military judge shall direct that the person be released from custody unless counsel for the Canadian Forces, or in the absence of counsel a person appointed by the custody review officer, shows cause why the continued retention of the person in custody is justified or why any other direction under this Division should be made.

1998, c. 35, s. 42.

Marginal note:Justification for retention in custody

159.2 For the purposes of sections 159.1 and 159.3, the retention of a person in custody is only justified when one or more of the following grounds have been established to the satisfaction of the military judge:

(a) custody is necessary to ensure the person’s attendance before a service tribunal or a civil court to be dealt with according to law;

(b) custody is necessary for the protection or the safety of the public, having regard to all the circumstances including any substantial likelihood that the person will, if released from custody, commit an offence or interfere with the administration of justice; and

(c) any other just cause has been shown, having regard to the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

1998, c. 35, s. 42.

Marginal note:Onus on person in custody

159.3(1) Notwithstanding section 159.1, if the person in custody is charged with having committed a designated offence, the military judge shall direct that the person be retained in custody until dealt with according to law, unless the person shows cause why the person’s retention in custody is not justified.

Marginal note:Release on undertaking

(2) If the person in custody shows cause why the person’s retention in custody is not justified, the military judge shall direct that the person be released from custody on giving any undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate, unless the person in custody shows cause why the giving of an undertaking is not justified.

1998, c. 35, s. 42.

Marginal note:Release with or without undertaking

159.4(1) The military judge may direct that the person be released without conditions or that the person be released on the giving of an undertaking to comply with any of the conditions referred to in section 158.6 that the military judge considers appropriate.

Marginal note:Variation of undertaking

(a) by direction of a military judge on application with reasonable notice being given; or

(b) with the written consent of the person and the Director of Military Prosecutions.

1998, c. 35, s. 42.

Marginal note:Hearing may be adjourned

159.5 The military judge may adjourn the hearing on the military judge’s own motion or on application, but the adjournment may not be for more than three clear days except with the consent of the person in custody.

1998, c. 35, s. 42.

Marginal note:Alternate means of hearing

159.6(1) The military judge may direct that the hearing be conducted wholly or in part by the means of a telecommunications device, including by telephone, if the military judge is satisfied that the benefit of a hearing by that device outweighs the potential prejudice to the person in custody of conducting a hearing by that device.

Marginal note:Representations and factors to be considered

(2) In deciding whether to make the direction, the military judge shall take into account

Marginal note:Reasons

159.7 The military judge shall include in the minutes of any proceedings under this Division the reasons for any direction.

1998, c. 35, s. 42.

Duty of Director of Military Prosecutions

Marginal note:Review after 90 days

159.8 If the trial of a person who has been retained in custody has not commenced within ninety days after the day that person was last taken before a military judge, the Director of Military Prosecutions shall cause the person to be brought before a military judge to determine whether the continued retention of the person in custody is justified under section 159.2.

1998, c. 35, s. 42.

Review by Court Martial Appeal Court

Marginal note:Review of direction

159.9(1) At any time before the commencement of a person’s trial, a judge of the Court Martial Appeal Court may, on application, review any direction of a military judge under this Division to release the person from custody with or without an undertaking or to retain the person in custody.

Marginal note:Application of provisions

(2) The provisions of this Division apply, with any modifications that the circumstances require, to any review under this section.

1998, c. 35, s. 42.

DIVISION 4Commencement of Proceedings

Interpretation

Definition of commanding officer

160 In this Division, commanding officer, in respect of an accused person, means the commanding officer of the accused person and includes an officer who is empowered by regulations made by the Governor in Council to act as the commanding officer of the accused person.

R.S., 1985, c. N-5, s. 160;

R.S., 1985, c. 31 (1st Supp.), s. 60;

1998, c. 35, s. 42.

Laying of Charge

Marginal note:Laying of charge

161 Proceedings against a person who is alleged to have committed a service offence are commenced by the laying of a charge in accordance with regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 161;

1998, c. 35, s. 42.

Marginal note:Referral to commanding officer

161.1 After a charge is laid, it shall be referred to an officer who is a commanding officer in respect of the accused person.

1998, c. 35, s. 42.

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

162 Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.

Right to Trial by Court Martial

Marginal note:Election

162.1 Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.

1998, c. 35, s. 42.

Marginal note:Referral of charge

162.2 When an accused person elects to be tried by court martial, the charge in respect of the accused person shall be referred to the Director of Military Prosecutions in accordance with regulations made by the Governor in Council.

DIVISION 5Summary Trials

Interpretation

Marginal note:Definitions

commanding officer, in respect of an accused person, means an officer who is a commanding officer within the meaning of section 160. (commandant)

superior commander

commandant supérieur

superior commander means an officer of or above the rank of brigadier-general, or any other officer appointed by the Chief of the Defence Staff as a superior commander. (commandant supérieur)

1998, c. 35, s. 42.

Summary Trials by Commanding Officers

Marginal note:Jurisdiction

163(1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:

(a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

(b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

(d) the offence is not one that, according to regulations made by the Governor in Council, the commanding officer is precluded from trying; and

(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

Marginal note:Limitation period

(1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

Marginal note:Prohibition on presiding

(2) Unless it is not practical, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if

(a) the commanding officer carried out or directly supervised the investigation of the offence;

(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the commanding officer; or

Marginal note:Sentences

(3) Subject to the conditions set out in Division 2 relating to punishments, a commanding officer at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

Marginal note:Delegation

(4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer’s command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:

Marginal note:When no summary trial

163.1(1) A commanding officer who determines that a charge is to proceed but who does not try the accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

(a) another officer who has jurisdiction to try the accused person by summary trial; or

(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

Marginal note:Subsequent proceedings not precluded

(2) A decision of a commanding officer that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

Marginal note:Charge may be referred

(3) If a commanding officer decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

1998, c. 35, s. 42.

Summary Trial by Superior Commanders

Marginal note:Jurisdiction

164(1) A superior commander may try an accused person by summary trial if all of the following conditions are satisfied:

(a) the accused person is an officer below the rank of lieutenant-colonel or a non-commissioned member above the rank of sergeant;

(b) having regard to the gravity of the offence, the superior commander considers that his or her powers of punishment are adequate;

(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

(d) the offence is not one that, according to regulations made by the Governor in Council, the superior commander is precluded from trying; and

(e) the superior commander does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

Marginal note:Limitation period

(1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.

Marginal note:Prohibition on presiding

(2) Unless it is not practical, having regard to all the circumstances, for any other superior commander to conduct the summary trial, a superior commander may not preside at the summary trial of a person charged with an offence if

(a) the superior commander carried out or directly supervised the investigation of the offence;

(b) the summary trial relates to an offence in respect of which a warrant was issued under section 273.3 by the superior commander as a commanding officer; or

Marginal note:Exception

(3) A superior commander may try an accused person who is of the rank of lieutenant-colonel by summary trial in any circumstances that are prescribed by the Governor in Council in regulations.

Marginal note:Sentences

(4) Subject to the conditions set out in Division 2 relating to punishments, a superior commander at a summary trial may pass a sentence in which any one or more of the following punishments may be included:

Marginal note:When no summary trial

164.1(1) A superior commander who determines that a charge should proceed but who does not try an accused person by summary trial shall refer the charge, in accordance with regulations made by the Governor in Council, to

(a) another officer who has jurisdiction to try the accused person by summary trial; or

(b) an officer who is authorized by regulations made by the Governor in Council to refer charges to the Director of Military Prosecutions.

Marginal note:Subsequent proceedings not precluded

(2) A decision by a superior commander that a charge should not proceed does not preclude proceeding with the charge at any subsequent time.

Marginal note:Charge may be referred

(3) If a superior commander decides that a charge should not be proceeded with, the person who laid the charge may, in circumstances prescribed by the Governor in Council in regulations, refer it to an officer referred to in paragraph (1)(b).

1998, c. 35, s. 42.

Referral to Director of Military Prosecutions

Marginal note:Duty to refer

164.2(1) Subject to subsection (2), an officer to whom a charge is referred under paragraph 163.1(1)(b), subsection 163.1(3), paragraph 164.1(1)(b) or subsection 164.1(3) shall forward it to the Director of Military Prosecutions, with any recommendations regarding its disposal that the officer considers appropriate.

Marginal note:Exception

(2) Where the charge was referred by a commanding officer or superior commander, the officer to whom the charge was referred may direct the commanding officer or superior commander to try the accused by summary trial if

(a) the charge was referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial; and

(b) the officer is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial.

1998, c. 35, s. 42.

DIVISION 6Trial by Court Martial

Charge must be Preferred

Marginal note:Charge must be preferred

165(1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.

Meaning of prefer

(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.

R.S., 1985, c. N-5, s. 165;

1992, c. 16, s. 2;

1998, c. 35, s. 42.

Director of Military Prosecutions

Marginal note:Appointment

165.1(1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Military Prosecutions.

Marginal note:Tenure of office and removal

(2) The Director of Military Prosecutions holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Military Prosecutions from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

Marginal note:Powers of inquiry committee

(2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

Marginal note:Re-appointment

Marginal note:Duties and functions

165.11 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so.

1998, c. 35, s. 42.

Marginal note:Preferring charges

165.12(1) When a charge is referred to the Director of Military Prosecutions, the Director of Military Prosecutions may

(b) prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge.

Marginal note:Withdrawing charges

(2) The Director of Military Prosecutions may withdraw a charge that has been preferred, but if a trial by court martial has commenced, the Director of Military Prosecutions may do so only with leave of the court martial.

Marginal note:Effect of withdrawing charge

(3) Withdrawing a charge does not preclude it from being proceeded with at any subsequent time.

1998, c. 35, s. 42.

Marginal note:Referral of charge

165.13 If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

Marginal note:Barristers and advocates to assist

165.15 The Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province.

1998, c. 35, s. 42.

Marginal note:Acting Director of Military Prosecutions

165.16 The powers of the Director of Military Prosecutions may be exercised, and the duties and functions of the Director of Military Prosecutions may be performed, by any officer who is a barrister or advocate with standing at the bar of a province and who is authorized by the Minister.

1998, c. 35, s. 42.

Marginal note:Relationship to Judge Advocate General

165.17(1) The Director of Military Prosecutions acts under the general supervision of the Judge Advocate General.

Marginal note:General instructions

(2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions. The Director of Military Prosecutions shall ensure that they are available to the public.

Marginal note:Specific instructions

(3) The Judge Advocate General may issue instructions or guidelines in writing in respect of a particular prosecution.

Marginal note:Availability to public

(4) The Director of Military Prosecutions shall ensure that instructions and guidelines issued under subsection (3) are available to the public.

Marginal note:Exception

(5) Subsection (4) does not apply where the Director of Military Prosecutions considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.

Marginal note:Copies to Minister

(6) The Judge Advocate General shall provide the Minister with a copy of every instruction and guideline made under this section.

1998, c. 35, s. 42.

Court Martial Administrator

Marginal note:Appointment

165.18 There shall be a person appointed to be the Court Martial Administrator.

1998, c. 35, s. 42.

Marginal note:Duties

165.19(1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members.

Marginal note:Other duties

(2) The Court Martial Administrator performs such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations.

Marginal note:Relationship to Chief Military Judge

(3) The Court Martial Administrator acts under the general supervision of the Chief Military Judge.

Marginal note:Convening General Court Martial

165.191(1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is

(a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life;

(b) an offence punishable under section 130 that is punishable by imprisonment for life; or

(c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.

Marginal note:Consent to be tried by Standing Court Martial

(2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.

Marginal note:Withdrawal of consent

(3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.

2008, c. 29, s. 8.

Marginal note:Convening Standing Court Martial

165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is

(a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or

(b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.

2008, c. 29, s. 8.

Marginal note:Choice of accused

165.193(1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.

Marginal note:Notification

(2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).

Marginal note:Failure to make choice

(3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.

Marginal note:New choice — as of right

(4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

Marginal note:New choice — with consent

(5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.

Marginal note:Two or more accused

(6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.

Marginal note:Convening of court martial

(7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.

2008, c. 29, s. 8.

Marginal note:Acting Court Martial Administrator

165.2 The duties and functions of the Court Martial Administrator may be performed by any person authorized by the Court Martial Administrator.

1998, c. 35, s. 42.

Military Judges

Marginal note:Appointment

165.21(1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.

Marginal note:Oath

(2) Every military judge shall, before commencing the duties of office, take the following oath of office:

I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

Marginal note:Removal for cause

(3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.

Marginal note:Ceasing to hold office

(4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.

Marginal note:Resignation

(5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

Marginal note:Reserve force military judge

(2) An officer named to the panel is referred to in this Act as a “reserve force military judge”.

Marginal note:Oath

(3) Every reserve force military judge shall, before commencing the duties of office, take the following oath of office:

I solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)

Marginal note:Removal from panel

165.221(1) The Governor in Council may for cause remove the name of a reserve force military judge from the Reserve Force Military Judges Panel on the recommendation of the Military Judges Inquiry Committee.

Marginal note:Automatic removal from panel

(2) The name of a reserve force military judge shall be removed from the panel on the judge’s release, at his or her request, from the Canadian Forces or on the judge attaining the age of 60 years.

Marginal note:Voluntary removal from panel

(3) A reserve force military judge may request that their name be removed from the panel by giving notice in writing to the Minister. The removal takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.

2013, c. 24, s. 41.

Marginal note:Chief Military Judge

165.222(1) The Chief Military Judge may select any reserve force military judge to perform any duties referred to in section 165.23 that may be specified by the Chief Military Judge.

Marginal note:Training

(2) The Chief Military Judge may request a reserve force military judge to undergo any training that may be specified by the Chief Military Judge.

2013, c. 24, s. 41.

Marginal note:Restriction on activities

165.223 A reserve force military judge shall not engage in any business or professional activity that is incompatible with the duties that they may be required to perform under this Act.

2013, c. 24, s. 41.

Duties and Immunity of Military Judges

Marginal note:Judicial duties and functions

165.23(1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.

Marginal note:Other duties and functions

(2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.

Marginal note:Boards of inquiry

(3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.

1998, c. 35, s. 42.

Marginal note:Immunity

165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.

2013, c. 24, s. 42.

Chief Military Judge

Marginal note:Chief Military Judge

165.24(1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.

Marginal note:Rank

(2) The Chief Military Judge holds a rank that is not less than colonel.

Marginal note:Duties and functions

165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act.

1998, c. 35, s. 42.

Marginal note:Delegation

165.26 The Chief Military Judge may authorize any military judge, other than a reserve force military judge, to exercise and perform any of the powers, duties and functions of the Chief Military Judge.

Marginal note:Delegation

165.27 The Chief Military Judge may delegate any of the Chief Military Judge’s duties and functions to a military judge.

1998, c. 35, s. 42.

Marginal note:Deputy Chief Military Judge

165.28 The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Deputy Chief Military Judge.

2013, c. 24, s. 45.

Marginal note:Power, duties and functions

165.29 In the event that the Chief Military Judge is absent or unable to act or the office of Chief Military Judge is vacant, the Deputy Chief Military Judge shall exercise and perform the powers, duties and functions of the Chief Military Judge that are not otherwise authorized to be exercised or performed by a military judge under section 165.26.

2013, c. 24, s. 45.

Marginal note:Rules of practice and procedure

165.3 The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

(d) all other matters necessary or proper for the due exercise of its jurisdiction.

2013, c. 24, s. 45.

Marginal note:Inquiry required

165.32(1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.

Marginal note:Other inquiry

(2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.

Marginal note:Examination and recommendation

(3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.

Marginal note:Notice to military judge

(4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.

Marginal note:Inquiry held in public or private

(5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.

Marginal note:Counsel

(6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.

Marginal note:Recommendation to the Governor in Council

(7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,

(a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of

(iii) having failed in the due execution of his or her judicial duties, or

(iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or

(b) the military judge does not satisfy the physical and medical fitness standards applicable to officers.

Marginal note:Report

(8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

2013, c. 24, s. 45.

Military Judges Compensation Committee

Marginal note:Composition of Committee

165.33(1) There is established a Military Judges Compensation Committee consisting of three part-time members to be appointed by the Governor in Council as follows:

Marginal note:Reappointment

Marginal note:Absence or incapacity

(4) In the event of the absence or incapacity of a member, the Governor in Council may appoint, as a substitute temporary member, a person nominated in accordance with subsection (1).

Marginal note:Vacancy

(5) If the office of a member becomes vacant during the member’s term, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office for the remainder of the term.

Marginal note:Quorum

(6) All three members of the compensation committee together constitute a quorum.

Marginal note:Remuneration

(7) The members of the compensation committee shall be paid the remuneration fixed by the Governor in Council and, subject to any applicable Treasury Board directives, the reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

2013, c. 24, s. 45.

Marginal note:Mandate

165.34(1) The Military Judges Compensation Committee shall inquire into the adequacy of the remuneration of military judges.

Marginal note:Factors to be considered

(2) In conducting its inquiry, the compensation committee shall consider

(a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

(b) the role of financial security of the judiciary in ensuring judicial independence;

(d) any other objective criteria that the committee considers relevant.

Marginal note:Quadrennial inquiry

(3) The compensation committee shall commence an inquiry on September 1, 2015, and on September 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister within nine months after the day on which the inquiry commenced.

Marginal note:Postponement

(4) The compensation committee may, with the consent of the Minister and the military judges, postpone the commencement of a quadrennial inquiry.

2013, c. 24, s. 45.

Marginal note:Other inquiries

165.35(1) The Minister may at any time refer to the Military Judges Compensation Committee for its inquiry the matter, or any aspect of the matter, mentioned in subsection 165.34(1).

Marginal note:Report

(2) The compensation committee shall submit to the Minister a report containing its recommendations within a period fixed by the Minister after consultation with the compensation committee.

Marginal note:Continuance of duties

(3) A person who ceases to hold office as a member for any reason other than their removal may carry out and complete their duties in respect of a matter that was referred to the compensation committee under subsection (1) before the person ceased to hold office. While completing those duties, the person is deemed to be a member of the compensation committee.

2013, c. 24, s. 45.

Marginal note:Extension

165.36 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

2013, c. 24, s. 45.

Marginal note:Minister’s duties

165.37(1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

Marginal note:Response

(2) The Minister shall respond to a report within six months after receiving it.

2013, c. 24, s. 45.

General Courts Martial

Marginal note:Jurisdiction

166 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

R.S., 1985, c. N-5, s. 166;

1998, c. 35, s. 42.

Marginal note:Punishment limitation

166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

2008, c. 29, s. 9.

Marginal note:Composition

167(1) A General Court Martial is composed of a military judge and a panel of five members.

Marginal note:Rank of senior member

(2) The senior member of the panel must be an officer of or above the rank of colonel.

Marginal note:Rank for trial of officer

(3) If the accused person is an officer, all of the members of the panel must be officers.

Marginal note:Ranks for trial of brigadier-general or above

(4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

Marginal note:Rank for trial of colonel

(5) If the accused person is of the rank of colonel, all of the members of the panel, except the senior member, must be of or above the rank of lieutenant-colonel.

Marginal note:Rank for trial of lieutenant-colonel

(6) If the accused person is of the rank of lieutenant-colonel, at least two of the members of the panel must be of or above the rank of lieutenant-colonel.

Marginal note:Rank for trial of non-commissioned member

(7) If the accused person is a non-commissioned member, two non-commissioned members who are of the rank of warrant officer or above must be appointed as members of the panel and the other three members must be officers.

R.S., 1985, c. N-5, s. 167;

1992, c. 16, s. 3;

1998, c. 35, s. 42.

Marginal note:Ineligibility to serve

168 None of the following persons may sit as a member of the panel of a General Court Martial:

Marginal note:Witnesses

(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.

Marginal note:Clearing court

(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.

R.S., 1985, c. N-5, s. 180;

1992, c. 16, s. 8;

1998, c. 35, s. 43;

2001, c. 41, s. 101.

Rules of Evidence

Marginal note:Regulations to establish rules

181(1) Subject to this Act, the rules of evidence at trials by court martial shall be such as are established by regulations made by the Governor in Council.

Marginal note:Publication

(2) No regulation made under this section is effective until it has been published in the Canada Gazette and every such regulation shall be laid before Parliament within fifteen days after it is made or, if Parliament is not then in session, within fifteen days after the commencement of the next ensuing session.

R.S., c. N-4, s. 158.

Marginal note:Admission of documents and records

182(1) Such classes of documents and records as are prescribed in regulations made by the Governor in Council may be admitted, as evidence of the facts therein stated, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of those classes of documents and records or copies thereof shall be as prescribed in those regulations.

(2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:

(a) if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;

(b) if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and

(c) at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.

Witnesses at Courts Martial

Marginal note:Procurement of attendance of witnesses

183(1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.

Marginal note:Exception

(1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.

Marginal note:Procurement of attendance in exceptional cases

(2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.

Marginal note:Reimbursement of accused for fees and expenses

(3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.

Marginal note:Rights of accused preserved

(4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire.

R.S., 1985, c. N-5, s. 183;

1998, c. 35, s. 44.

Evidence on Commission

Marginal note:Appointment of commissioner to take evidence

184(1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martial

(a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

(c) whose attendance is not readily obtainable for a good and sufficient reason.

Marginal note:Admissibility of commission evidence

(2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.

Marginal note:Power to require personal attendance of witness

(3) Where, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of justice, appear and give evidence before the court martial and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

(4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.

R.S., 1985, c. N-5, s. 184;

1998, c. 35, s. 45.

Marginal note:Copy to accused

185 The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).

R.S., c. N-4, s. 161.

Objections

Marginal note:Objections

186(1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.

Marginal note:Replacements

(2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.

R.S., 1985, c. N-5, s. 186;

1998, c. 35, s. 46.

Preliminary Proceedings

Marginal note:Preliminary proceedings

187 At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.

Amendment of Charges

Marginal note:Amendment if defence not prejudiced

188(1) Where it appears to a court martial that there is a technical defect in a charge that does not affect the substance of the charge, the court martial, if of the opinion that the conduct of the accused person’s defence will not be prejudiced by an amendment of the charge, shall make the order for the amendment of the charge that it considers necessary to meet the circumstances of the case.

Marginal note:Adjournment on amendment of charge

(2) Where a charge is amended by a court martial, the court martial shall, if the accused person so requests, adjourn its proceedings for any period that it considers necessary to enable the accused person to meet the charge so amended.

Marginal note:Minute of amendment

(3) Where a charge is amended by a court martial, a minute of the amendment shall be endorsed on the charge sheet.

Marginal note:Plea of guilty

191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.

2008, c. 29, s. 14.

Marginal note:Decision of panel

192(1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

Marginal note:Decision

(2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

Marginal note:Disagreement of panel

192.1(1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.

Marginal note:Dissolution of court martial

(2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.

2008, c. 29, s. 14.

Marginal note:Sentence

193 The military judge presiding at a General Court Martial determines the sentence.

Similar Offences

Marginal note:Similar offences may be considered in imposing sentence

194(1) A court martial may, on the request of a person who is found guilty and who admits to having committed service offences similar in character to an offence of which the person is found guilty, take those service offences into consideration for the purposes of the sentence as if the person had been charged with, tried for and found guilty of those service offences.

Marginal note:Restriction

(2) If a court martial takes an admitted service offence into consideration for the purposes of the sentence, the sentence may not include any punishment higher in the scale of punishments than the punishment that might be imposed in respect of any offence of which the person is found guilty.

R.S., 1985, c. N-5, s. 194;

1998, c. 35, s. 46.

Pronouncement of Findings and Sentence

Marginal note:Manner and effective date of pronouncement

195 The finding and sentence of a court martial shall, at the conclusion of the trial of the offender so sentenced, be pronounced in open court to the offender, who shall be under the sentence as of the date of the pronouncement thereof.

R.S., c. N-4, s. 170.

Death or Incapacity

Marginal note:Death or incapacity to continue of judge

196(1) Where the military judge presiding at a court martial dies or is for any reason unable to continue, the proceedings of the court martial are deemed to be adjourned. The proceedings may be continued with another military judge, in this section referred to as the “replacement judge”, assigned by the Chief Military Judge.

Marginal note:When finding not pronounced

(2) If the court martial has not pronounced its finding before the presiding military judge dies or becomes unable to continue, the replacement judge

(a) in the case of a General Court Martial, may order that the court martial

(i) continue from the stage at which it was when it was deemed to be adjourned, or

(ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and

(b) in the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced.

Marginal note:Adjudications and evidence

(3) In the case of a court martial continued under subparagraph (2)(a)(i),

(a) if an adjudication was made before the adjournment but no order was made, the replacement judge shall make any order that is authorized by law and required in the circumstances; and

(b) if any evidence was adduced before the adjournment, the evidence is deemed to have been adduced before the replacement judge but, if the prosecutor and the accused so agree, any part of that evidence may be adduced again.

Marginal note:When finding pronounced

(4) If the court martial pronounced its finding before the presiding military judge died or became unable to continue, the replacement judge shall determine the sentence.

Marginal note:Dissolution

196.1(1) If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.

Marginal note:Illness of accused

(2) Where, on account of the illness of an accused person, it is impossible to continue the trial of that person, the court martial is dissolved.

Marginal note:Unfit to stand trial

(3) Where a court martial finds, under subsection 198(2), that an accused person is unfit to stand trial and it completes the proceedings under subsection 200(2), the court martial is dissolved.

Marginal note:Effect of dissolution

(4) Where a court martial is dissolved pursuant to this section, the accused person may be dealt with as if the trial had never commenced.

(a) in relation to a bodily substance that is taken in execution of a warrant under section 196.12, means forensic DNA analysis of the bodily substance and the comparison of the results of that analysis with the results of the analysis of the DNA in the bodily substance referred to in paragraph 196.12(1)(b), and includes any incidental tests associated with that analysis; and

(b) in relation to a bodily substance that is provided voluntarily in the course of an investigation of a designated offence or is taken from a person in execution of an order made under section 196.14 or under an authorization granted under section 196.24, or to a bodily substance referred to in paragraph 196.12(1)(b), means forensic DNA analysis of the bodily substance. (analyse génétique)

peace officer

agent de la paix

peace officer means

(a) a police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process; or

(b) an officer or a non-commissioned member of the Canadian Forces who is

(ii) employed on duties that the Governor in Council has prescribed in the regulations to be of such a kind as to necessitate that the officer or non-commissioned member performing them has the powers of a peace officer. (agent de la paix)

prescribed form

formulaire réglementaire

prescribed form means a form prescribed in the regulations made by the Governor in Council. (formulaire réglementaire)

primary designated offence

infraction primaire

primary designated offence means

(a) an offence within the meaning of paragraphs (a) and (c.02) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

(a.1) an offence within the meaning of any of paragraphs (a.1) to (c.01), (c.03) and (c.1) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130; and

(b) an attempt to commit or, other than for the purpose of subsection 196.12(1), a conspiracy to commit an offence within the meaning of any of paragraphs (a) to (c.03) of the definition primary designated offence in section 487.04 of the Criminal Code that is punishable under section 130. (infraction primaire)

secondary designated offence

infraction secondaire

secondary designated offence means

(a) an offence within the meaning of any of paragraphs (a) to (d) of the definition secondary designated offence in section 487.04 of the Criminal Code that is punishable under section 130;

Marginal note:Information for DNA warrant

196.12(1) A military judge, on ex parte application in the prescribed form, may issue a warrant in the prescribed form authorizing the taking for the purpose of forensic DNA analysis, from a person subject to the Code of Service Discipline, of any number of samples of bodily substances that is reasonably required for that purpose, if the military judge is satisfied by information on oath that it is in the best interests of the administration of justice to do so and that there are reasonable grounds to believe

(i) a peace officer who is able, by virtue of training or experience, to obtain a bodily substance from the person, or

(ii) another person who is able, by virtue of training or experience, to obtain under the direction of a peace officer a bodily substance from the person.

2000, c. 10, s. 1.

Marginal note:Telewarrants

196.13(1) If a peace officer believes that it would be impracticable to appear personally before a military judge to apply for a warrant, the peace officer may submit an information on oath to the judge by telephone or other means of telecommunication.

Marginal note:Contents of information

(2) An information submitted by telephone or other means of telecommunication shall include, in addition to the information described in subsection 196.12(1),

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a military judge; and

(b) a statement as to any prior application for a warrant under this section.

Marginal note:Oath in writing

(3) If the telecommunication is in written form, a written statement by the peace officer that all matters contained in the information are true to the officer’s knowledge and belief is deemed to be a statement made under oath.

Marginal note:Information filed with Court Martial Administrator

(4) The military judge shall, as soon as practicable, certify the information as to time and date of receipt, and cause it to be filed with the Court Martial Administrator. If the telecommunication is not in written form, the information that is to be filed is the verbatim record, or a transcription of it, certified by the judge as to its contents and time and date of receipt.

Marginal note:Formalities respecting warrant and facsimiles

(5) When a military judge issues a warrant by telephone or other means of telecommunication that is not in written form,

(a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

(b) the peace officer, on the direction of the judge, shall complete, in duplicate, a facsimile of the warrant in the prescribed form, noting on its face the name of the judge and the time, date and place of issuance; and

(c) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the Court Martial Administrator.

Marginal note:Issuance of warrant — telecommunication in written form

(6) When a military judge issues a warrant by a means of telecommunication in written form,

(a) the judge shall complete and sign the warrant in the prescribed form, noting on its face the time, date and place of issuance;

(b) the judge shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information, and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (5)(b);

(c) the peace officer shall procure another facsimile of the warrant; and

(d) the judge shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with Court Martial Administrator.

Marginal note:Proof of authorization

(7) In any proceeding in which it is material for a court to be satisfied that the taking of samples of a bodily substance was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the military judge and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the taking of the samples was not authorized.

Marginal note:Duplicates and facsimiles acceptable

(8) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purpose of subsection (7).

2000, c. 10, s. 1.

Marginal note:Order — primary designated offences

196.14(1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition primary designated offence in section 196.11 when the person is sentenced.

Marginal note:Order — primary designated offences

(2) A court martial shall make such an order in the prescribed form in relation to a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a.1) or (b) of the definition primary designated offence in section 196.11 when the person is sentenced. However, the court martial is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of military justice, to be achieved through the early detection, arrest and conviction of offenders.

(3) A court martial may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of military justice to do so, make such an order in the prescribed form in relation to

(a) a person who is found not responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made; or

(b) a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced.

In deciding whether to make the order, the court martial shall consider the nature of the offence and the circumstances surrounding its commission, any previous convictions by a service tribunal or civil court, any previous finding of not responsible on account of mental disorder for a designated offence and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for the decision.

Marginal note:Order to offender

(4) When a court martial makes an order authorizing the taking of samples of bodily substances, it may make an order in the prescribed form to require the person to report at the place, day and time set out in the order and submit to the taking of the samples.

Marginal note:Timing of order

196.16(1) The court martial may make an order under section 196.14 authorizing the taking of samples of bodily substances either when it imposes a sentence on a person or finds them not responsible on account of mental disorder or at a later date if it adjourns the proceedings after it imposes the sentence or makes the finding.

Marginal note:Hearing by new court martial

(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;

(b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and

(c) for greater certainty, the person who may be made subject to the order continues to be liable to be dealt with under the Code of Service Discipline for the purpose of the hearing.

Marginal note:Failure to appear

196.161(1) If a person fails to appear at the place, day and time set out in an order made under subsection 196.14(4) or 196.24(4), a military judge may issue a warrant in the prescribed form for their arrest to allow samples of bodily substances to be taken.

Marginal note:Warrant in force

(2) The warrant may be executed anywhere in or outside Canada by a peace officer who has jurisdiction in that place or over the person. The warrant remains in force until it is executed.

2005, c. 25, s. 25;

2007, c. 22, s. 5.

Marginal note:When collection to take place

196.17(1) Samples of bodily substances shall be taken as authorized under section 196.14

(a) at the place, day and time set out in an order made under subsection 196.14(4) or as soon as feasible afterwards; or

(b) in any other case, on the day on which the order authorizing the taking of the samples is made or as soon as feasible afterwards.

Marginal note:When collection to take place

(1.1) Samples of bodily substances shall be taken as authorized under section 196.24

(a) at the place, day and time set out in an order made under subsection 196.24(4) or as soon as feasible afterwards; or

(b) in any other case, as soon as feasible after the authorization is granted.

Marginal note:When collection to take place

(1.2) If a person fails to appear as required by an order made under subsection 196.14(4) or 196.24(4), samples of bodily substances shall be taken

(a) when the person is arrested under a warrant issued under subsection 196.161(1) or as soon as feasible afterwards; or

(b) as soon as feasible after the person appears at the place set out in the order if no warrant is issued.

Marginal note:Appeal

(1.3) Subsections (1) to (1.2) apply even if the order or authorization to take the samples of bodily substances is appealed.

Marginal note:Collection of samples

(2) A peace officer who is authorized under section 196.14 or 196.24 to take samples of bodily substances may cause the samples to be taken in any place in or outside Canada in which the person who is subject to the order or authorization is located.

Marginal note:Who collects samples

(3) The samples shall be taken by a peace officer who has jurisdiction over the person or in the place in which the samples are taken — or a person acting under their direction — who is able, by virtue of training or experience, to take them.

Marginal note:Report of peace officer

196.18(1) A peace officer who takes samples of bodily substances from a person or who causes a person who is not a peace officer to take samples under their direction shall, as soon as feasible after the samples are taken, make a written report in the prescribed form and cause the report to be filed with

(a) the military judge who issued the warrant under section 196.12 or 196.13 or who granted the authorization under section 196.24, or another military judge; or

(b) the Court Martial Administrator, in the case of an order made by a court martial under section 196.14.

Marginal note:Contents of report

(2) The report shall state the time and date the samples were taken, and describe the bodily substances that were taken.

Marginal note:Copy of report

(2.1) The peace officer who takes the samples or causes the samples to be taken under their direction at the request of another peace officer shall send a copy of the report to the other peace officer unless that other peace officer had jurisdiction to take the samples.

Marginal note:Unexecuted telewarrant

(3) If a peace officer does not execute a warrant that was issued in accordance with section 196.13, the peace officer must make a report stating the reasons why the warrant was not executed.

Marginal note:No criminal or civil liability

196.19 No peace officer, and no person acting under a peace officer’s direction, incurs any disciplinary, criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of samples of bodily substances in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24.

Marginal note:Investigative procedures

196.2(1) A peace officer, or a person acting under a peace officer’s direction, is authorized by a warrant issued under section 196.12 or 196.13, an order made under section 196.14 or an authorization granted under section 196.24 to take samples of bodily substances by any of the following means:

(b) the taking of buccal swabs by swabbing the lips, tongue and inside cheeks of the mouth to collect epithelial cells; or

(c) the taking of blood by pricking the skin surface with a sterile lancet.

Marginal note:Terms and conditions

(2) The warrant or order shall include any terms and conditions that the military judge or court martial considers advisable to ensure that the taking of the samples is reasonable in the circumstances.

Marginal note:Fingerprints

(3) A peace officer who is authorized to take samples of bodily substances from a person by an order made under section 196.14 or an authorization granted under section 196.24, or a person acting under their direction, may take fingerprints from the person for the purpose of the DNA Identification Act.

Marginal note:Duty to inform

196.21(1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 196.12 or 196.13 or an order made under section 196.14 or under an authorization granted under section 196.24, a peace officer shall inform the person of

(d) the authority of the peace officer and any person acting under the officer’s direction to use as much force as is reasonably necessary for the purpose of taking the samples; and

(e) in the case of samples of bodily substances taken in execution of a warrant, the possibility that the results of forensic DNA analysis may be used in evidence.

Marginal note:Detention of person

(2) A person from whom samples of bodily substances are to be taken may, for that purpose, be detained for a period that is reasonable in the circumstances and be required to accompany a peace officer.

Marginal note:Respect of privacy

(3) A peace officer, or any person acting under a peace officer’s direction, who takes samples of bodily substances from a person shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

Marginal note:Verification

196.22(1) Before taking samples of bodily substances from a person under an order made under section 196.14 or an authorization granted under section 196.24, a peace officer, or a person acting under their direction, shall verify whether the convicted offenders index of the national DNA data bank, established under the DNA Identification Act, contains the person’s DNA profile.

Marginal note:DNA profile in data bank

(2) If the person’s DNA profile is in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall not take any bodily substances from the person but shall

(a) confirm in writing on the order or authorization that they have been advised that the person’s DNA profile is in the national DNA data bank; and

(b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner.

Marginal note:DNA profile not in data bank

(3) If the person’s DNA profile is not in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall execute the order or authorization and transmit to the Commissioner

Marginal note:Destruction of bodily substances, etc.

196.23(1) Subject to subsection (2), bodily substances that are taken from a person in execution of a warrant under section 196.12 and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after

(a) the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person;

(b) the person is finally acquitted of the designated offence and of any other offence in respect of the same transaction; or

(c) the expiry of one year after the charge is withdrawn unless during that year the person is again charged with the designated offence or any other offence in respect of the same transaction.

Marginal note:Exception

(2) A military judge may order that the bodily substances that are taken from a person and the results of forensic DNA analysis not be destroyed during any period that the judge considers appropriate if the judge is satisfied that they might reasonably be required in an investigation or prosecution of the person for another designated offence or of another person for the designated offence or any other offence in respect of the same transaction.

(3) Bodily substances that are provided voluntarily by a person and the results of forensic DNA analysis shall be destroyed or, in the case of results in electronic form, access to those results shall be permanently removed, without delay after the results of the analysis establish that the bodily substance referred to in paragraph 196.12(1)(b) was not from that person.

2000, c. 10, s. 1.

Marginal note:Collection of additional bodily substances

196.24(1) A military judge may, on ex parte application made in the prescribed form within a reasonable time, authorize, in the prescribed form, the taking from a person, for the purpose of forensic DNA analysis, of any number of additional samples of bodily substances that is reasonably required for that purpose if

(a) a DNA profile cannot be derived from the bodily substances that were taken from that person under an order made under section 196.14; or

(b) the information or bodily substances required by regulations made under the DNA Identification Act were not transmitted in accordance with the requirements of the regulations or were lost.

Marginal note:Reasons

(2) The application shall state the reasons why a DNA profile cannot be derived from the bodily substances or why the information or bodily substances were not transmitted in accordance with the regulations or were lost.

Marginal note:For greater certainty

(3) For greater certainty, the person who may be made subject to the authorization continues to be liable to be dealt with under the Code of Service Discipline for that purpose.

Marginal note:Persons not in custody

(4) If the military judge authorizes the taking of samples of bodily substances from a person who is not in custody, an order in the prescribed form shall be directed to the person requiring them to report at the place, day and time set out in the order and submit to the taking of the samples.

Marginal note:Review by Director of Military Prosecutions

196.241(1) On receipt of a notice from the Commissioner under subsection 5.2(1) of the DNA Identification Act that an order made under section 196.14 or an authorization granted under section 196.24 appears to be defective, the Director of Military Prosecutions shall review the order or authorization and the court record.

Marginal note:Clerical error

(2) If the Director of Military Prosecutions is of the opinion that the defect is due to a clerical error, the Director shall

(a) apply, ex parte, to the military judge who made the order, or to another military judge, to have it corrected; and

(b) transmit a copy of the corrected order or authorization, if any, to the Commissioner.

Marginal note:Substantive defect

(3) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is not a designated offence, the Director shall inform the Commissioner of that opinion.

Marginal note:No defect

(4) If the Director of Military Prosecutions is of the opinion that the offence referred to in the order or authorization is a designated offence, the Director shall transmit that opinion, with written reasons, to the Commissioner.

2005, c. 25, s. 29;

2007, c. 22, s. 44.

Marginal note:Order denying access to information used to obtain a warrant

196.25(1) A military judge may, on application made at the time of issuing a warrant, make an order prohibiting access to and the disclosure of any information relating to the warrant on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

Marginal note:Reasons

(2) For the purpose of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

Marginal note:Procedure

(3) If an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the military judge considers desirable in the circumstances, including terms and conditions concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the military judge immediately on determination of the application, and that packet shall be kept in the custody of the Court Martial Administrator in a place to which the public has no access or in any other place that the judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

Marginal note:Application for variance of order

(4) An application to terminate the order or vary any of its terms and conditions may be made to the military judge who made the order or to another military judge.

2000, c. 10, s. 1.

DIVISION 6.2Identification of Accused Persons and Offenders

Meaning of designated offence

196.26 In this Division, designated offence means an offence under any of the following provisions of this Act:

(z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

2002, c. 13, s. 88.

Marginal note:Fingerprints and photographs

196.27(1) Any person who is charged with, or convicted by a court martial of, a designated offence may be fingerprinted or photographed or subjected to any other measurement, process or operation having the object of identifying persons that is approved by order of the Governor in Council under the Identification of Criminals Act.

Marginal note:Use of force

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described in subsection (1).

Marginal note:Publication

(3) The results of the measurements, processes and operations to which a person has been subjected under subsection (1) may be published for the purpose of affording information to peace officers within the meaning of Division 6.1 and others engaged in the execution or administration of the law.

2002, c. 13, s. 88.

Marginal note:No liability for acting under this Division

196.28 No civil or criminal liability shall be incurred by any person for anything lawfully done under this Division or by any person concerned in the publication of results for the purpose of subsection 196.27(3).

2002, c. 13, s. 88.

Marginal note:Destruction of fingerprints, photographs, etc.

196.29 Fingerprints, photographs and other measurements that are taken under subsection 196.27(1) from a person who is charged with a designated offence shall be destroyed without delay

(a) if the person is tried by summary trial in respect of that charge; or

(b) on application by the person, if the charge has not been proceeded with in the three years after the charge is laid.

DIVISION 7Mental Disorder

Interpretation

Marginal note:Definitions

(a) in respect of a court martial held in Canada, the province in which it is held, or

(b) in respect of a court martial held outside Canada, the province with which the Minister makes arrangements for the benefit and welfare of the accused person; (province concernée)

assessment

évaluation

assessment means an assessment of the mental condition of the accused person, and any incidental observation or examination of the accused person; (évaluation)

medical practitioner

médecin

medical practitioner means a person who is entitled to practise medicine by the laws of a province; (médecin)

Review Board

commission d’examen

Review Board means the Review Board established or designated for a province pursuant to subsection 672.38(1) of the Criminal Code. (commission d’examen)

R.S., 1985, c. N-5, s. 197;

1991, c. 43, s. 18;

1998, c. 35, s. 92.

Fitness to Stand Trial

Marginal note:Presumption of fitness

198(1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial.

Marginal note:Court directs issue to be tried

(2) Subject to section 199, where at any time after the commencement of a trial by court martial the court martial has reasonable grounds to believe that the accused person is unfit to stand trial, the court martial may direct, of its own motion or on application of the accused person or the prosecutor, that the issue of fitness be tried, and a finding shall be made by the court martial as to whether the accused person is unfit to stand trial.

Marginal note:Burden of proof

(3) An accused person or a prosecutor who makes an application under subsection (2) has the burden of proof that the accused is unfit to stand trial.

Marginal note:Order for assessment

(4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person is unfit to stand trial, the court martial may make an order for an assessment of the accused person.

Marginal note:Subsequent proceedings

(5) A finding of unfit to stand trial shall not prevent the accused person from being tried subsequently on the same charge where the accused person becomes fit to stand trial.

R.S., 1985, c. N-5, s. 198;

1991, c. 43, s. 18.

Marginal note:Postponing trial of issue

199(1) Where the trial of an issue referred to in subsection 198(2) arises before the close of the case for the prosecution, the court martial may postpone directing the trial of the issue until a time not later than the opening of the case for the defence or, on motion of the accused person, such later time as the court martial may direct.

Marginal note:Issue not tried

(2) Where a court martial postpones directing the trial of an issue pursuant to subsection (1) and the accused person is found not guilty or proceedings are otherwise terminated, the issue shall not be tried.

R.S., 1985, c. N-5, s. 199;

1991, c. 43, s. 18.

Marginal note:Trial proceeds where accused fit to stand trial

200(1) Where the finding of a court martial on trial of the issue is that an accused person is fit to stand trial, the court martial shall continue its proceedings as if the issue of fitness had never arisen.

Marginal note:Procedure where accused unfit to stand trial

(2) Where the finding on trial of the issue is that an accused person is unfit to stand trial, the court martial shall

(b) hold a hearing and make a disposition under section 201 in respect of the accused person if it is satisfied that it can readily do so and that a disposition should be made without delay.

Marginal note:Order for assessment

(3) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under subsection (2) or under section 202, the court martial may make an order for an assessment of the accused person.

Marginal note:Disposition

201(1) Where a court martial makes a disposition pursuant to subsection 200(2), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

(a) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

(b) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

Marginal note:Treatment not a condition

(2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

R.S., 1985, c. N-5, s. 201;

1991, c. 43, s. 18;

1997, c. 18, s. 130.

Marginal note:Treatment disposition

202(1) Where the finding on trial of the issue is that an accused person is unfit to stand trial and the court martial has not made a disposition under section 201, the court martial may, on application by the prosecutor, by order, direct that treatment of the accused person be carried out for a specified period not exceeding sixty days, subject to such conditions as the court martial considers appropriate, and, where the accused person is not detained in custody, direct that the accused person submit to that treatment by the person or at the place specified in the order.

Marginal note:Condition

(2) No disposition may be made under this section unless the court martial is satisfied, on the basis of evidence described in subsection (3), that a specific treatment should be administered to the accused person for the purpose of making the accused person fit to stand trial.

Marginal note:Evidence required

(3) The evidence required by a court martial for the purposes of subsection (2) shall be a statement by a medical practitioner that the practitioner has made an assessment of the accused person and is of the opinion, based on the grounds specified, that

(a) the accused person, at the time of the assessment, was unfit to stand trial;

(b) the psychiatric treatment and any other related medical treatment specified by the practitioner will likely render the accused person fit to stand trial within a period not exceeding sixty days and that without that treatment the accused person is likely to remain unfit to stand trial;

(c) the risk of harm to the accused person from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

(d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (2), taking into consideration the opinions stated in paragraphs (b) and (c).

Marginal note:Notice

(3.1) A court martial shall not make a disposition under this section unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

Marginal note:Challenge by accused person

(4) On receipt of the notice referred to in subsection (3.1), an accused person may challenge an application of the prosecutor under this section, and may adduce any evidence for that purpose.

Marginal note:Exception

(5) A court martial shall not direct, and no direction given pursuant to a disposition made under this section shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment prescribed in regulations.

Marginal note:Definitions

(6) In subsection (5), electro-convulsive therapy and psychosurgery have the meaning assigned by the regulations.

Marginal note:Consent of hospital required for treatment

(7) A court martial shall not make a disposition under this section without the consent of the person in charge of the hospital or place where the accused person is to be treated or of the person to whom responsibility for the treatment of the accused person is assigned by the court martial.

Marginal note:Consent of accused person not required for treatment

(8) A court martial may direct that treatment of an accused person be carried out pursuant to a disposition made under this section without the consent of the accused person or a person who, according to the laws of the jurisdiction where the disposition is made, is authorized to consent for the accused person.

202.1(1) Where a Review Board or the chairperson of a Review Board, in exercising a power under section 202.25, orders that the accused person be sent back to a court martial for trial of the issue of whether the accused person is fit to stand trial, the Review Board or chairperson shall, immediately after making the order, cause a copy of it to be sent to the Chief Military Judge.

Marginal note:Convening court martial

(2) On receipt of a copy of the order, the Chief Military Judge shall cause the Court Martial Administrator to convene a court martial to try the issue and make a finding of whether the accused person is fit to stand trial and, where the court martial finds the accused person fit, to try the accused person as if the issue had never arisen.

Marginal note:Custody in hospital

(3) Notwithstanding the opinion of a Review Board or the chairperson of a Review Board that an accused person is fit to stand trial, the Chief Military Judge or a military judge assigned by the Chief Military Judge may, on application, order the accused person to be detained in custody in a hospital or other appropriate place until a court martial makes a finding under subsection (2) if satisfied that there are reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

Marginal note:Burden and standard of proof

(4) In proceedings directed pursuant to subsection (2), the burden of proof that the accused person has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

1991, c. 43, s. 18;

1998, c. 35, s. 49.

Marginal note:Accused person to remain in hospital

202.11 Notwithstanding a finding that the accused person is fit to stand trial, the court martial may order an accused person to continue to be detained in custody in a hospital or other appropriate place until the completion of the trial, where the court martial has reasonable grounds to believe that the accused person will become unfit to stand trial unless so detained.

1991, c. 43, s. 18.

Marginal note:Prima facie case

202.12(1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial

(a) not later than two years after that finding and every two years thereafter until the accused person is tried or found not guilty in respect of the offence; or

(b) at any other time that the Chief Military Judge may order, where the Chief Military Judge is satisfied on the basis of an application and any other written material submitted by the accused person that there is reason to doubt that there is a prima facie case against the accused person.

Marginal note:Extension of time for holding inquiry

(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.

Marginal note:Where prima facie case not made

(2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.

Marginal note:Recommendation of Review Board

202.121(1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if

(a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and

(b) on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that

(i) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial, and

(ii) the accused person does not pose a significant threat to the safety of the public.

Marginal note:Notice

(2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.

Marginal note:Obligation of court martial

(3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, the inquiry if the court martial determines that it is appropriate.

Marginal note:Inquiry may be conducted

(4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that

(a) the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial; and

(b) the accused person does not pose a significant threat to the safety of the public.

Marginal note:Power to order an assessment

(5) Subject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.

Marginal note:Assessment order

(6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

Marginal note:Stay

(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

(a) on the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

Marginal note:Proper administration of justice

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:

(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and

Marginal note:Effect of stay

(9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.

Mental Disorder When Offence Committed

Marginal note:Defence of mental disorder

202.13(1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Marginal note:Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Marginal note:Burden of proof

(3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.

Marginal note:Assessment order

(4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.

1991, c. 43, s. 18.

Marginal note:Finding of not responsible on account of mental disorder

202.14(1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.

Marginal note:Effects

(2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

(a) the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;

(b) any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;

(c) any service tribunal or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;

(e) the finding may be considered in making an order under Division 3 in respect of that person;

(f) the finding may be considered in determining, under section 249.13 or 249.14, whether to substitute, mitigate, commute or remit a punishment included in a sentence imposed against that person for any other offence;

(g) the finding does not include a finding or determination respecting civil liability; and

(h) the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

Marginal note:Finding not previous conviction

(3) A finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions.

Marginal note:Disposition hearing

202.15(1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay.

Marginal note:Assessment order

(2) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

Marginal note:Disposition

202.16(1) Where a court martial makes a disposition pursuant to subsection 202.15(1), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

(a) by order, direct that the accused person be released from custody without conditions where, in the opinion of the court martial, the accused person is not a significant risk to the safety of the public;

(b) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

(c) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

Marginal note:Treatment not a condition

(2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

Marginal note:Conditions for custody

202.17(1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

(a) the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;

(b) custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; or

(c) the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e).

Marginal note:Report of medical practitioner in writing

(2) For the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing.

Marginal note:No treatment order on assessment

(3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment.

Marginal note:No custody or release orders during assessment

202.18(1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

Marginal note:Variation of assessment order

(2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances.

Marginal note:Assessment report

202.19(1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

Marginal note:Assessment report to be filed with court

(2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.

Marginal note:Distribution of assessment report

(3) Subject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.

Marginal note:Assessment report part of record

(4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared.

Marginal note:Effective date of disposition

202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.

Marginal note:Status quo pending Review Board’s hearing

202.21(1) Where a court martial makes a finding of unfit to stand trial or not responsible on account of mental disorder in respect of an accused person and does not make a disposition in respect of the accused person under section 201, 202 or 202.16, any order or direction for the custody or release from custody of the accused person that is in force at the time the finding is made continues in force, subject to its terms, until a disposition in respect of the accused person is made by the Review Board.

Marginal note:Variation of order

(2) Notwithstanding subsection (1), a court martial may, on cause being shown, cancel any order or direction referred to in subsection (1) and make any other order or direction for the custody or release from custody of the accused person that the court martial considers to be appropriate in the circumstances, including an order directing that the accused person be detained in custody in a hospital or other appropriate place pending a disposition in respect of the accused person made by the Review Board.

Marginal note:Subsequent court martial order takes precedence

(a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person; or

(b) imposes a sentence of imprisonment or detention on the accused person, that sentence takes precedence over any prior disposition made under paragraph 201(1)(b) or 202.16(1)(c).

Marginal note:Disposition takes precedence over probation order

(4) Where a disposition is made under paragraph 201(1)(b) or 202.16(1)(c) and the accused person is convicted or discharged conditionally under the Criminal Code by a civil court in respect of another offence but is not sentenced to a term of imprisonment in respect of that other offence, the disposition shall come into force and, notwithstanding any provision of the Criminal Code, takes precedence over any probation order made in respect of the offence.

Marginal note:Procedural irregularities

202.22(1) Any procedural irregularity in relation to a hearing held by a court martial or Review Board does not affect the validity of the proceedings unless the accused person suffers substantial prejudice thereby.

Marginal note:Reasons for disposition and copies to be provided

(2) After making a disposition in respect of an accused person under section 201, 202 or 202.16, a court martial shall state its reasons for making the disposition in the record of the proceedings, and shall provide or cause to be provided to the accused person, the prosecutor and the person in charge of the hospital or other appropriate place where the accused person is detained in custody or is to attend pursuant to the disposition a copy of the disposition and those reasons.

Marginal note:Transmittal of transcript to Review Board

(3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

Marginal note:Transmittal of transcript to Review Board

(3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

Marginal note:Order of committal

(4) Where a court martial makes a disposition in respect of an accused person under section 201 or 202.16 directing that the accused person be placed and detained in custody in a hospital or other appropriate place, a committing authority referred to in subsection 219(1) shall issue a committal order in such form as is prescribed by regulation.

Marginal note:Arrest without warrant for contravention of disposition

(2) A member of the military police or any other peace officer within the meaning of the Criminal Code may arrest an accused person without a warrant if he or she has reasonable grounds to believe that the accused person

(a) is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or

(b) has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.

Marginal note:Accused person released subject to conditions

(2.1) The member of the military police or other peace officer who makes an arrest under subsection (2) may release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

Marginal note:Continued detention

(2.2) The member of the military police or other peace officer shall not release the accused person if he or she has reasonable grounds to believe

(a) that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to

(2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

Marginal note:Justice or commanding officer not available

(3) If a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or commanding officer as soon as practicable.

Marginal note:Release of accused person

(3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

Marginal note:Notice

(3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

Marginal note:Order pending decision of Review Board

(4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

Marginal note:Powers of Review Board

(5) Where a Review Board receives a notice pursuant to subsection (4), it may exercise the powers and shall perform the duties referred to in the Criminal Code in respect of the accused person as if the Review Board were conducting a review of a disposition.

Protected Statements

Definition of protected statement

202.24(1) In this section, protected statement means a statement made by the accused person, during the course and for the purposes of an assessment ordered under this Division or treatment directed by a disposition made under section 202, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

Marginal note:Protected statements not admissible against accused

(2) No protected statement or reference to a protected statement made by an accused person is admissible in evidence, without the consent of the accused person, in any proceeding before a court, court martial, tribunal, body or person with jurisdiction to compel the production of evidence.

Marginal note:Exceptions

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

(d) determining whether the balance of the mind of the accused person was disturbed at the time of commission of the alleged offence, where the accused person is a female charged with an offence arising out of the death of her newly-born child;

(e) determining whether the accused person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from responsibility by virtue of subsection 202.13(1), if the accused person puts his or her mental capacity to form the requisite intent into issue or if the prosecutor raises the issue after a finding is made of not responsible on account of mental disorder;

(f) challenging the credibility of an accused person in any proceeding where the testimony of the accused person is inconsistent in a material particular with a protected statement that the accused person made previously; or

(g) establishing the perjury of an accused person who is charged with perjury in respect of a statement made in any proceeding.

Provisions of Criminal Code Applicable

Marginal note:Powers of Review Board

202.25(1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

(2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.

Marginal note:Application of ss. 672.67 to 672.71 of Criminal Code to findings

202.26 Sections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.

DIVISION 8Provisions Applicable to Imprisonment and Detention

Computation of Term

Marginal note:Commencement of term

204(1) Subject to subsection (3) and sections 215 to 218, the term of a punishment of imprisonment or detention shall commence on the date on which the service tribunal pronounces sentence on the offender.

Marginal note:Time counted

(2) The only time that shall be reckoned toward the completion of a term of a punishment of imprisonment or detention shall be the time that the offender spends in civil custody or service custody while under the sentence in which that punishment is included.

Marginal note:Special case

(3) Where a punishment referred to in subsection (2) cannot lawfully be carried out by reason of a vessel being at sea or in a port at which there is no suitable place of incarceration, the offender shall as soon as practicable, having regard to the exigencies of the service, be sent to a place where the punishment can lawfully be carried out, and the period of time prior to the date of arrival of the offender at that place shall not be reckoned toward the completion of the term of the punishment.

R.S., 1985, c. N-5, s. 204;

1998, c. 35, s. 57.

Service Prisons and Detention Barracks

Marginal note:Service prisons and detention barracks

205(1) Such places as are designated by the Minister for the purpose shall be service prisons and detention barracks and any hospital or other place for the reception of sick persons to which a person who is a service convict, service prisoner or service detainee has been admitted shall, in so far as relates to that person, be deemed to be part of the place to which that person has been committed.

Marginal note:Corrective disciplinary measures for service prisons and detention barracks

(2) The nature of and the manner of imposing corrective measures for breach of the regulations, orders and rules applicable in respect of service prisons and detention barracks by a person committed thereto as the result of a sentence passed on that person, and the terms and conditions of remission for good conduct of any part of a punishment involving incarceration, shall be as prescribed in regulations made by the Governor in Council.

Marginal note:Limitations

(3) Corrective measures referred to in subsection (2) shall not include whipping, paddling or any of the punishments referred to in paragraphs 139(1)(a) to (l) and shall not be so imposed as to increase the duration of any punishment involving a term of incarceration.

Suspension of Imprisonment or Detention

Marginal note:Service tribunal may suspend

215 Where an offender has been sentenced to imprisonment or detention, the carrying into effect of the punishment may be suspended by the service tribunal that imposed the punishment.

R.S., 1985, c. N-5, s. 215;

1998, c. 35, s. 60.

Definition of suspending authority

216(1) In this section and sections 217 and 218, suspending authority means any authority prescribed to be a suspending authority by the Governor in Council in regulations.

Marginal note:Suspension of imprisonment or detention

(2) A suspending authority may suspend a punishment of imprisonment or detention, whether or not the offender has already been committed to undergo that punishment.

Marginal note:Committing authority may postpone committal

(3) Where an offender has been sentenced to imprisonment or detention and suspension of the punishment has been recommended, the authority empowered to commit the offender to a penitentiary, civil prison, service prison or detention barrack, as the case may be, may postpone committal until directions of a suspending authority have been obtained.

Marginal note:Mandatory suspension of detention

(4) A suspending authority shall suspend a punishment of detention in the circumstances prescribed by the Governor in Council in regulations.

R.S., 1985, c. N-5, s. 216;

1998, c. 35, s. 60.

Marginal note:Effect of suspension before committal

216.1(1) Where a punishment is suspended before committal to undergo the punishment, the offender shall, if in custody, be discharged from custody and the term of the punishment shall not commence until the offender has been ordered to be committed to undergo that punishment.

Marginal note:Effect of suspension after committal

(2) Where a punishment is suspended after committal to undergo the punishment, the offender shall be discharged from the place in which the offender is incarcerated and the currency of the punishment shall be arrested after the day of that discharge until the offender is again ordered to be committed to undergo that punishment.

1998, c. 35, s. 60.

Marginal note:Review and remission

217(1) Where a punishment has been suspended, it may at any time, and shall at intervals of not more than three months, be reviewed by a suspending authority and if on the review it appears to the suspending authority that the conduct of the offender, since the punishment was suspended, has been such as to justify a remission of the punishment, the suspending authority shall remit it.

Marginal note:Automatic remission of punishments

(2) A punishment, except a punishment referred to in subsection (3), that has been suspended shall be deemed to be wholly remitted on the expiration of a period, commencing on the day the suspension was ordered, equal to the term of the punishment less any time during which the offender has been incarcerated following pronouncement of the sentence, unless the punishment has been put into execution prior to the expiration of that period.

Marginal note:Automatic remission of detention

(3) A punishment of detention that has been suspended is deemed to be wholly remitted on the expiration of one year commencing on the day the suspension was ordered, unless the punishment has been put into execution prior to the expiration of that period.

R.S., 1985, c. N-5, s. 217;

1998, c. 35, s. 61.

Marginal note:Committal after suspension

218(1) A suspending authority may, at any time while a punishment is suspended, direct the authority empowered to do so to commit the offender and, after the date of the committal order, that punishment ceases to be suspended.

Marginal note:Term where suspended punishment put into execution

(2) Where a punishment that has been suspended under subsection 215(1) is put into execution, the term of the punishment shall be deemed to commence on the date on which it is put into execution, but there shall be deducted from the term any time during which the offender has been incarcerated following pronouncement of the sentence.

R.S., c. N-4, s. 186.

Committal to Imprisonment or Detention

Marginal note:Committing authority

219(1) The Minister may prescribe or appoint authorities for the purposes of this section and section 220 and, in this section and section 220, an authority prescribed or appointed under this subsection is referred to as a “committing authority”.

Marginal note:Warrants for committal

(2) A committal order, in such form as is prescribed in regulations, made by a committing authority is a sufficient warrant for the committal of a service convict, service prisoner or service detainee to any lawful place of confinement.

Marginal note:Authority for transfer

(3) A committing authority may, by warrant, order that a service convict, service prisoner or service detainee be transferred, from the place to which that convict, prisoner or detainee has been committed to undergo punishment, to any other place in which that punishment may lawfully be put into execution.

Marginal note:Custody pending delivery on committal and during transfer

(4) A service convict, service prisoner or service detainee, until delivered to the place where that convict, prisoner or detainee is to undergo punishment or while being transferred from one such place to another such place, may be held in any place, either in service custody or in civil custody, or at one time in service custody and at another time in civil custody, as occasion may require, and may be transferred from place to place by any mode of conveyance, under such restraint as is necessary for the safe conduct of that convict, prisoner or detainee.

R.S., c. N-4, s. 187.

Marginal note:Committal of service convicts

220(1) A service convict whose punishment of imprisonment for life or for two years or more is to be put into execution shall as soon as practicable be committed to a penitentiary to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service convict be committed to a service prison to undergo the punishment or any part of the punishment.

Marginal note:Committal when unexpired term less than two years

(2) Where a committing authority orders the committal to a penitentiary of a service convict, part of whose punishment has been undergone in a service prison, the service convict may be so committed notwithstanding that the unexpired portion of the term of that punishment is less than two years.

Marginal note:Committal of service prisoners

(3) A service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon as practicable be committed to a civil prison to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punishment or part thereof.

Marginal note:Committal of service detainees

(4) A service detainee whose punishment of detention is to be put into execution shall as soon as practicable be committed to a detention barrack to undergo the punishment.

R.S., 1985, c. N-5, s. 220;

1998, c. 35, s. 62.

Temporary Removal from Incarceration

Marginal note:Authority for temporary removal

221 Where the exigencies of the service so require, a service convict, service prisoner or service detainee may, by an order made by a committing authority referred to in section 219 or 220, be removed temporarily from the place to which he has been committed for such period as may be specified in that order but, until returned to that place, any person removed pursuant to this section shall be retained in service custody or civil custody, as occasion may require, and no further committal order is necessary on the return of the person to that place.

R.S., c. N-4, s. 188.

Rules Applicable to Service Convicts and Service Prisoners

Marginal note:Rules of penitentiaries and civil prisons to apply

222(1) A service convict, while undergoing punishment in a penitentiary, or a service prisoner, while undergoing punishment in a civil prison, shall be dealt with in the same manner as other prisoners in the place where that convict or prisoner is undergoing punishment, and all rules applicable in respect of a person sentenced by a civil court to imprisonment in a penitentiary or civil prison, as the case may be, in so far as circumstances permit, apply accordingly.

Marginal note:Jurisdiction and discretion of Parole Board of Canada

(2) Where the punishment of a service convict undergoing punishment in a penitentiary or a service prisoner undergoing punishment in a civil prison is not suspended, mitigated, commuted or remitted under this Act within six months after the date of the committal of that convict or prisoner to that penitentiary or civil prison, the Parole Board of Canada has, subject to Part II of the Corrections and Conditional Release Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant or revoke the parole of that convict or prisoner.

Validity of Documents

Marginal note:Legalization and rectification

223 The custody of a service convict, service prisoner or service detainee is not illegal by reason only of informality or error in or in respect of a document containing a warrant, order or direction issued in pursuance of this Act, or by reason only that the document deviates from the prescribed form, and any such document may be amended appropriately at any time by the authority that issued it in the first instance or by any other authority empowered to issue documents of the same nature.

R.S., c. N-4, s. 190.

Mental Disorder during Imprisonment or Detention

Marginal note:Persons in penitentiaries or civil prisons

224 A service convict or service prisoner who, having been released from the Canadian Forces, is suffering from a mental disorder while undergoing punishment in a penitentiary or civil prison shall be treated in the same manner as if the convict or prisoner were a person undergoing a term of imprisonment in the penitentiary or civil prison by virtue of the sentence of a civil court.

Transfer of Offenders

Marginal note:Transfer of offenders

226(1) A person who has been found guilty of an offence by a civil court in Canada or by a civil or military tribunal of any country other than Canada and sentenced to a term of incarceration may, with the approval of the Chief of the Defence Staff or an officer designated by the Chief of the Defence Staff, be transferred to the custody of the appropriate civil or military authorities of Canada for incarceration under this Act.

Marginal note:Imprisonment or detention of offenders transferred

(2) A person transferred under subsection (1) may, in lieu of the incarceration to which that person was sentenced, be imprisoned or detained for the term or the remainder of the term of incarceration to which he was sentenced as though that person had been sentenced to that term by a service tribunal, and the provisions of this Division are applicable in respect of every person so transferred as though the person had been so sentenced.

Marginal note:Restriction

(3) A person who has been found guilty of an offence by a civil court in Canada shall not,

(a) if sentenced by the civil court to a term of less than two years, be transferred under subsection (1) without the consent of the attorney general of the province in which that person is incarcerated; or

(b) if sentenced by the civil court to imprisonment for life or a term of two years or more, be transferred under subsection (1) without the consent of the Attorney General of Canada.

R.S., 1985, c. N-5, s. 226;

1998, c. 35, ss. 64, 92.

Parole Eligibility

Marginal note:Sentence of imprisonment for life

226.1(1) A court martial that imposes a punishment of imprisonment for life shall pronounce the following sentence:

(a) in the case of a person who has been convicted of having committed traitorously an offence of misconduct in the presence of an enemy (section 73 or 74), an offence related to security (section 75) or an offence in relation to prisoners of war (section 76), imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(b) in the case of a person who has been convicted of an offence of high treason or an offence of first degree murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(c) in the case of a person who has been convicted of an offence of second degree murder and has previously been convicted of culpable homicide that is murder, imprisonment for life without eligibility for parole until the person has served 25 years of the sentence;

(d) in the case of a person who has been convicted of an offence of second degree murder, imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted under subsection (2); or

(e) in the case of a person who has been convicted of any other offence, imprisonment for life with normal eligibility for parole.

(2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of imprisonment for life that is imposed under this Act, and for that purpose

(a) a reference in sections 745.2 to 745.3 of the Criminal Code to a jury shall be read as a reference to the panel of a General Court Martial; and

(b) in the case of a conviction that took place outside Canada, a reference in section 745.6 of the Criminal Code to the province in which a conviction took place shall be read as a reference to the province in which the offender is incarcerated when they make an application under that section.

2013, c. 24, ss. 68, 132.

Marginal note:Power of court martial to delay parole

226.2(1) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction for an offence set out in Schedule I or II to that Act that is punishable under section 130 of this Act, a court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

Marginal note:Condition

(2) The court martial may only make the order if it is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence requires that the order be made.

Marginal note:Criminal organization offences

(3) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment for life that is imposed otherwise than as a minimum punishment or a sentence of imprisonment for two years or more on conviction under this Act for a criminal organization offence, the court martial may order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less.

Marginal note:Power of court martial to delay parole

(4) Despite section 120 of the Corrections and Conditional Release Act, if a person receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the person may be released on full parole is one half of the sentence or 10 years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the person’s character and circumstances, that the expression of society’s denunciation of the offence and the objectives of specific or general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

Marginal note:Objectives

(5) The paramount objectives that are to guide the court martial under this section are denunciation and specific or general deterrence, with the rehabilitation of the person, in all cases, being subordinate to those paramount objectives.

(a) an offence within the meaning of paragraph (a), (c), (c.1), (d) or (d.1) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;

(b) an offence within the meaning of paragraph (b) of the definition designated offence in subsection 490.011(1) of the Criminal Code that is punishable under section 130 of this Act;

(c) an attempt or conspiracy to commit an offence referred to in paragraph (a); or

(d) an attempt or conspiracy to commit an offence referred to in paragraph (b). (infraction désignée)

finding of not responsible on account of mental disorder

verdict de non-responsabilité pour cause de troubles mentaux

finding of not responsible on account of mental disorder includes a verdict of not criminally responsible on account of mental disorder within the meaning of subsection 672.1(1) of the Criminal Code. (verdict de non-responsabilité pour cause de troubles mentaux)

officer, or non-commissioned member, of the primary reserve

officier ou militaire du rang de la première réserve

officer, or non-commissioned member, of the primary reserve means an officer, or non-commissioned member, of the reserve force

(a) who is required, whether on active service or not, to perform military or any other form of duty or training;

(b) whose primary duty is not the supervision, administration and training of cadet organizations referred to in section 46; and

Order to Comply with the Sex Offender Information Registration Act

Marginal note:Order

227.01(1) When a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or finds the person not responsible on account of mental disorder for such an offence, it shall make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02.

Marginal note:Order — if intent established

(2) When a court martial imposes a sentence on a person for an offence referred to in paragraph (b) or (d) of the definition designated offence in section 227, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a) or (c) of that definition.

Marginal note:Order — if previous offence established

(3) When a court martial imposes a sentence on a person for a designated offence in connection with which an order may be made under subsection (1) or (2) or finds the person not responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02 if the prosecutor establishes that

(a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not responsible on account of mental disorder for, an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code;

(b) the person was not served with a notice under section 227.08 of this Act or section 490.021 or 490.02903 of the Criminal Code in connection with that offence; and

(c) no order was made under subsection (1) or under subsection 490.012(1) of the Criminal Code in connection with that offence.

Marginal note:Failure to make order

(3.1) If the court martial does not consider the matter under subsection (1) or (3) at that time,

(a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;

(b) the Court Martial Administrator shall, within 90 days after the day on which the sentence was imposed or the person was found not responsible on account of mental disorder, convene the court martial; and

(c) for greater certainty, the person continues to be liable to be dealt with under the Code of Service Discipline for that purpose.

Marginal note:Interpretation

(4) For the purpose of paragraph (3)(a), a previous conviction includes a conviction for an offence

Marginal note:Date order begins

Marginal note:Duration of order

(a) ends 10 years after it was made if the maximum term of imprisonment for the offence in connection with which it was made is five years or less;

(b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and

(c) applies for life if the maximum term of imprisonment for the offence is life.

Marginal note:Duration of order

(2.1) An order made under subsection 227.01(1) applies for life if the person is convicted of, or found not responsible on account of mental disorder for, more than one offence referred to in paragraph (a) or (c) of the definition designated offence in section 227.

Marginal note:Duration of order

(3) An order made under subsection 227.01(1) or (2) applies for life if the person is, or was at any time, subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act.

Marginal note:Duration of order

(4) An order made under subsection 227.01(1) or (2) applies for life if the person is, or was at any time, subject to an order made previously under section 227.01 of this Act or section 490.012 of the Criminal Code.

Marginal note:Duration of order

Marginal note:Application for termination order

227.03(1) A person who is subject to an order may apply for a termination order

(a) if five years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(a);

(b) if 10 years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(b); or

(c) if 20 years have elapsed since the order was made, in the case of an order referred to in paragraph 227.02(2)(c) or subsection 227.02(2.1), (3) or (5).

Marginal note:Multiple orders

(2) A person who is subject to more than one order made under section 227.01 may apply for a termination order if 20 years have elapsed since the most recent order was made.

Marginal note:Pardon or record suspension

(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Marginal note:Scope of application

(4) The application shall be in relation to every order that is in effect. If a person is subject to an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act, the application shall also be in relation to that obligation.

Marginal note:Re-application

(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.

Marginal note:Jurisdiction

(6) The application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.015 of the Criminal Code.

Marginal note:Court martial

(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.

Marginal note:Termination order

227.04(1) The court martial shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

(i) the Review Board that is responsible for making a disposition with respect to that person, if applicable,

(ii) the person in charge of the place in which the person who is subject to the order is to serve the custodial portion of a sentence or is to be detained in custody as part of a disposition under Division 7 of this Part, if applicable, and

Marginal note:Notice on disposition by Review Board

(2) A Review Board shall cause a copy of the order to be given to the person who is subject to the order when it directs,

(a) in the exercise of the powers and performance of the duties assigned to it under paragraph 672.54(a) of the Criminal Code, that the person be discharged absolutely; or

(b) in the exercise of the powers and performance of the duties assigned to it under paragraph 672.54(b) of the Criminal Code, that the person be discharged subject to conditions, unless the conditions restrict the person’s liberty in a manner and to an extent that prevent them from complying with sections 4, 4.1, 4.3 and 6 of the Sex Offender Information Registration Act.

Marginal note:Notice before release

(3) The person in charge of the place in which the person who is subject to the order is serving the custodial portion of a sentence, or is detained in custody, before their release or discharge shall give them a copy of the order not earlier than 10 days before their release or discharge.

Notice and Obligation to Comply with the Sex Offender Information Registration Act — Convictions Before September 12, 2008

Marginal note:Obligation to comply

227.06 A person who is served with a notice in the prescribed form shall comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.09 of this Act unless an exemption order is made under subsection 227.1(4) of this Act or subsection 490.023(2) of the Criminal Code.

2007, c. 5, s. 4.

Marginal note:Persons who may be served

227.07(1) The Provost Marshal may serve a person with a notice if, on the day on which this section comes into force, they are subject to a sentence for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or have not been discharged absolutely or unconditionally released from custody under Division 7 of this Part in connection with such an offence.

Marginal note:Exception

(a) they may be served with a notice under section 490.021 of the Criminal Code;

(b) they have been finally acquitted of, or have received a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code for, every offence in connection with which the notice may be served on them; or

(c) an application has been made for an order under subsection 227.01(3) of this Act or subsection 490.012(3) of the Criminal Code in relation to any offence in connection with which the notice may be served on them.

Marginal note:Period for and method of service

227.08(1) The notice shall be personally served within one year after the day on which section 227.07 comes into force.

Marginal note:Exception

(2) If a person is unlawfully at large or is in breach of any terms of their sentence or their discharge or release under Division 7 of this Part, or of any conditions set under this Part, that relate to residence, the notice may be served by registered mail at their last known address.

Marginal note:Proof of service

(3) An affidavit of the person who served the notice, sworn before a commissioner or other person authorized to take affidavits, is evidence of the service and the notice if it sets out that

(a) the person who served the notice has charge of the appropriate records and has knowledge of the facts in the particular case;

(b) the notice was personally served on, or mailed to, the person to whom it was directed on a named day; and

(c) the person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.

Marginal note:Requirements relating to notice

(4) The person who served the notice shall send a copy of the affidavit and the notice to the Provost Marshal without delay.

Marginal note:Date obligation begins

(a) either one year after the day on which the person is served with the notice, or when an exemption order is refused under subsection 227.1(4) of this Act or subsection 490.023(2) of the Criminal Code, whichever is later; or

Marginal note:Duration of obligation

(a) ends 10 years after the person was sentenced, or found not responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is five years or less;

(b) ends 20 years after the person was sentenced, or found not responsible on account of mental disorder, for the offence listed in the notice if the maximum term of imprisonment for the offence is 10 or 14 years;

(c) applies for life if the maximum term of imprisonment for the offence listed in the notice is life; or

(d) applies for life if, at any time, the person was convicted of, or found not responsible on account of mental disorder for, more than one offence that is referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code and if more than one of those offences is listed in the notice.

Marginal note:Application for exemption order

227.1(1) A person who is not subject to an order under section 227.01 of this Act or section 490.012 of the Criminal Code may apply for an order exempting them from the obligation within one year after they are served with a notice under section 227.08.

Marginal note:Jurisdiction

(2) The application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.023 of the Criminal Code.

Marginal note:Court martial

(3) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.

Marginal note:Exemption order

(4) The court martial shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Marginal note:Reasons for decision

Marginal note:Removal of information from database

(6) If the court martial makes an exemption order, it shall also make an order requiring the Royal Canadian Mounted Police to permanently remove from the database all information that relates to the person that was registered in the database on receipt of the notice.

Marginal note:Requirements relating to notice

227.11 If the court martial refuses to make an exemption order or if the Court Martial Appeal Court dismisses an appeal from such a decision or quashes an exemption order, it shall cause the Provost Marshal to be notified of the decision and shall cause the person who applied for the order to be informed of sections 4 to 7.1 of the Sex Offender Information Registration Act, section 119.1 of this Act and sections 490.031 and 490.0311 of the Criminal Code.

(b) an order under section 227.01 of this Act or section 490.012 of the Criminal Code that began later.

Marginal note:Time for application

(2) A person may apply for a termination order if the following period has elapsed since they were sentenced, or found not responsible on account of mental disorder, for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227:

(a) five years if the maximum term of imprisonment for the offence is five years or less;

(b) 10 years if the maximum term of imprisonment for the offence is 10 or 14 years; or

(c) 20 years if the maximum term of imprisonment for the offence is life.

Marginal note:More than one offence

(3) If more than one offence is listed in the notice served under section 227.08, the person may apply for a termination order if 20 years have elapsed since they were sentenced, or found not responsible on account of mental disorder, for the most recent offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 of this Act or in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition designated offence in subsection 490.011(1) of the Criminal Code.

Marginal note:Pardon or record suspension

(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.

Marginal note:Re-application

(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.

Marginal note:Jurisdiction

(6) The application shall be made to the Chief Military Judge if the applicant is subject to the Code of Service Discipline or is an officer, or non-commissioned member, of the primary reserve at the time. In any other case, the application shall be made to a court under section 490.026 of the Criminal Code.

Marginal note:Court martial

(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.

Marginal note:Termination order

227.13(1) The court martial shall make an order terminating the obligation if it is satisfied that the person has established that the impact on them of continuing the obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

Marginal note:Requirements relating to notice

Marginal note:Deemed application

227.14 If a person is eligible to apply for both an exemption order under section 227.1 and a termination order under section 227.12 within one year after they are served with a notice under section 227.08, an application within that period for one order is deemed to be an application for both.

2007, c. 5, s. 4.

Suspension of Time Limits, Proceedings and Obligations

227.15(1) The Chief of the Defence Staff may determine that a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, for operational reasons, unable to

(a) apply for an exemption order under section 227.1 of this Act or section 490.023 of the Criminal Code within the required period;

(b) appeal the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1) of this Act — or appeal a decision made under subsection 490.012(2), 490.016(1), 490.023(2), 490.027(1), 490.02905(2), 490.02909(1) or 490.02913(1) of the Criminal Code — within the required period;

(c) participate in a proceeding relating to an exemption order referred to in paragraph (a) or in an appeal proceeding referred to in paragraph (b); or

Marginal note:Effects of determination

(2) If the Chief of the Defence Staff makes a determination, the following rules apply:

(a) in the case of a determination under paragraph (1)(a), the running of the period during which the person may apply for an exemption order is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply;

(b) in the case of a determination under paragraph (1)(b), the running of the period during which the person may appeal the legality of a decision, or a decision, is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply;

(i) any proceeding relating to an exemption order is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply, or

(ii) an application may be made to appeal the legality of a decision, or a decision, after the day on which the operational reasons first apply, but any appeal proceeding is suspended from the day on which the operational reasons first apply until 45 days after the day on which they cease to apply; and

(d) in the case of a determination under paragraph (1)(d), the person’s obligation to comply with the relevant section of the Sex Offender Information Registration Act is suspended from the day on which the operational reasons first apply until 15 days after the day on which they cease to apply.

Marginal note:Factors for consideration

(2.1) The Chief of the Defence Staff may make a determination only if he or she is of the opinion that the operational reasons clearly outweigh in importance the public interest in applying the provisions of the Act that, but for the determination, would apply in the circumstances.

Marginal note:Notice to Minister

(2.2) The Chief of the Defence Staff shall notify the Minister before making a determination.

Marginal note:Review of operational reasons

(2.3) Every 15 days after a determination is made, the Chief of the Defence Staff shall consider whether the operational reasons cease to apply.

Marginal note:Notice

(3) The Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.

Marginal note:Notice

(4) The Chief of the Defence Staff shall notify the Provost Marshal without delay of the determination, the date on which the operational reasons first apply and the date on which they cease to apply, and the Provost Marshal shall notify the person without delay.

Marginal note:Notice

(5) The Provost Marshal shall notify the following persons without delay of a determination made under paragraph (1)(b) or (c), the effect of the determination, the date on which the suspension of the time limit or proceeding first applies and the date on which it ceases to apply:

(a) the Minister or counsel instructed by the Minister if the decision in relation to which an appeal may be brought was made under this Act, or the Minister or counsel instructed by the Minister and the Court Martial Administrator if the proceeding was commenced under this Act; or

(b) the attorney general of a province or the minister of justice of a territory if the decision in relation to which an appeal may be brought was made, or the proceeding was commenced, in that jurisdiction under the Criminal Code.

Marginal note:Determination — information relating to an operation

227.16(1) The Chief of the Defence Staff may determine that the communication, under section 6 of the Sex Offender Information Registration Act, of information that relates to an operation could jeopardize national security, international relations or the security of an operation that is within a class of operations designated by a regulation made under paragraph 227.2(b).

Marginal note:Notice

(2) The Chief of the Defence Staff shall notify the Minister without delay that a determination has been made under this section.

Marginal note:Notice

(3) The Chief of the Defence Staff shall notify the Provost Marshal without delay of the determination, and the Provost Marshal shall notify without delay any participant in the operation who is required to comply with section 6 of the Sex Offender Information Registration Act.

Marginal note:Annual Report

227.171(1) The Chief of the Defence Staff shall, within 30 days after the end of each year, submit a report to the Minister on the operation of sections 227.15 and 227.16 for that year that includes

(a) the number of determinations made under each of paragraphs 227.15(a) to (d) and the duration of the suspension resulting from each determination; and

(b) the number of determinations made under subsection 227.16(1) and the number of persons exempted under subsection 227.16(4) as a result of each determination.

Marginal note:Tabling in Parliament

(2) The Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.

2007, c. 5, s. 4.

Disclosure of Information

Marginal note:Disclosure

227.18(1) At the request of the Provost Marshal, the Commissioner of the Royal Canadian Mounted Police or a person authorized by the Commissioner shall disclose information that is registered in the database, or the fact that information is registered in the database, to the Provost Marshal if the disclosure is necessary to enable the Provost Marshal to determine

(a) whether a person may be served with a notice under section 227.08;

(b) for the purpose of a proceeding under section 227.01 or subsection 227.04(1), 227.1(4) or 227.13(1) or for the purpose of an appeal respecting the legality of a decision made under any of those provisions, whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, is, or was at any time, required to comply with an order made under section 227.01 of this Act or section 490.012 of the Criminal Code or with an obligation under section 227.06 of this Act, section 490.019 or 490.02901 of the Criminal Code or section 36.1 of the International Transfer of Offenders Act;

(d) whether a person who is subject to the Code of Service Discipline, or who is an officer, or non-commissioned member, of the primary reserve, may be the subject of a determination under subsection 227.15(1) or 227.16(1).

Marginal note:Disclosure by Provost Marshal

(a) to a prosecutor if the disclosure is necessary for the purpose of a proceeding for an order under section 227.01, a termination order under subsection 227.04(1) or 227.13(1) or an exemption order under subsection 227.1(4);

(b) to the Minister or counsel instructed by the Minister if the disclosure is necessary for the purpose of an appeal respecting the legality of a decision made in a proceeding referred to in paragraph (a);

(d) to the Chief of the Defence Staff if the disclosure is necessary for the purpose of a determination under subsection 227.15(1) or 227.16(1).

Marginal note:Disclosure in proceedings

(3) The prosecutor or the Minister or counsel instructed by the Minister may, if the information is relevant to the proceeding or appeal referred to in paragraph (2)(a) or (b), disclose it to the presiding judge, court or court martial.

Marginal note:Disclosure

227.19(1) If a person, in connection with a proceeding or an appeal other than one referred to in paragraph 227.18(2)(a) or (b), discloses the fact that information relating to them is registered in the database, the Provost Marshal shall request that the Commissioner of the Royal Canadian Mounted Police disclose all of the information relating to the person that is registered in the database. The Commissioner or a person authorized by the Commissioner shall disclose the information to the Provost Marshal without delay.

Marginal note:Disclosure by Provost Marshal

(a) to the officer who has jurisdiction to try the person and to a person who provides legal advice to the officer with respect to the proceeding, in the case of a summary trial; or

(b) to the prosecutor or to the Minister or counsel instructed by the Minister in any other case.

Marginal note:Disclosure in proceedings

(3) The officer who has jurisdiction to try the person may, if the officer is unable to preside over the summary trial, disclose the information to another officer who has jurisdiction to try the person and to a person who provides legal advice to that officer with respect to the summary trial.

Marginal note:Disclosure in proceedings

(4) The officer who presides over the summary trial may disclose the information to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the summary trial, if the information is relevant to the review.

Marginal note:Disclosure in proceedings

(5) The prosecutor or the Minister or counsel instructed by the Minister may disclose the information to the presiding judge, court or court martial in the proceeding or appeal or in any subsequent appeal, or to a review authority and to a person who provides legal advice to the review authority with respect to a review of a finding of guilty made or a punishment imposed in the proceeding or appeal, if the information is relevant to the proceeding, appeal or review.

Marginal note:Disclosure in proceedings

(6) A review authority may disclose the information to another review authority and to a person who provides legal advice to the other review authority with respect to a review by that review authority of a finding of guilty made or punishment imposed in a proceeding or appeal referred to in subsection (1) or in any subsequent appeal, if the information is relevant to the review.

Authorizations, Designations and Regulations

Marginal note:Regulations by Governor in Council

(a) respecting the means by which designated classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve are required to report under section 4, 4.1 or 4.3, or to provide notification under section 6, of the Sex Offender Information Registration Act to registration centres designated under paragraph (e);

(b) designating classes of operations in respect of which a determination may be made under subsection 227.16(1);

(c) authorizing persons or classes of persons in or outside Canada to collect information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve;

(d) authorizing persons or classes of persons in or outside Canada to register information under the Sex Offender Information Registration Act that relates to persons who are subject to the Code of Service Discipline and to officers, or non-commissioned members, of the primary reserve; and

(e) designating places or classes of places in or outside Canada as registration centres for the purposes of the Sex Offender Information Registration Act and the area, or classes of persons who are subject to the Code of Service Discipline and officers, or non-commissioned members, of the primary reserve, served by each registration centre.

2007, c. 5, s. 4.

Marginal note:Authorization

227.21 The Chief of the Defence Staff, the Provost Marshal, the Chief Military Judge or a commanding officer may authorize a person to communicate or disclose information, or give notice, under this Division on their behalf.

Right to Appeal

Marginal note:Appeal by person tried

230 Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

(a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

Marginal note:Appeal by Minister

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

(a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;

Marginal note:Appeal from order

230.2 Subject to subsection 232(3), a person who applied for an exemption order under section 227.1 or a termination order under section 227.03 or 227.12 and the Minister or counsel instructed by the Minister have the right to appeal to the Court Martial Appeal Court in respect of the legality of the decision made by the court martial.

2007, c. 5, s. 7.

Marginal note:Other rights preserved

231 The right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that the person has under the law of Canada.

R.S., c. N-4, s. 198.

Entry of Appeals

Marginal note:Form

232(1) An appeal or application for leave to appeal under this Division shall be stated on a form to be known as a Notice of Appeal, which shall contain particulars of the grounds on which the appeal is founded and shall be signed by the appellant.

Marginal note:Validity

(2) A Notice of Appeal is not invalid by reason only of informality or the fact that it deviates from the prescribed form.

Marginal note:Limitation period

(3) No appeal or application for leave to appeal under this Division shall be entertained unless the Notice of Appeal is delivered within thirty days after the date on which the court martial terminated its proceedings to the Registry of the Court Martial Appeal Court or, in such circumstances as may be prescribed by the Governor in Council in regulations, to a person prescribed in those regulations.

Marginal note:Extension

(4) The Court Martial Appeal Court or a judge thereof may at any time extend the time within which a Notice of Appeal must be delivered.

Marginal note:Forwarding statement

(5) Where a Notice of Appeal is delivered pursuant to subsection (3) to a person prescribed by the Governor in Council in regulations, the person shall forward the Notice of Appeal to the Registry of the Court Martial Appeal Court.

Appeals from Dispositions

Marginal note:Automatic suspension of certain dispositions

233(1) Subject to subsection (2), where the disposition appealed from is a disposition made under section 202 or paragraph 202.16(1)(a), the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

(2) A judge of the Court Martial Appeal Court may, on application of any party who gives notice to each of the other parties within the time and in the manner prescribed under subsection 244(1), where the judge is satisfied that the mental condition of the accused justifies the taking of such action,

(a) by order, direct that the application of a disposition made under section 202 or paragraph 202.16(1)(a) not be suspended pending the determination of the appeal;

(b) by order, direct that the application of a disposition appealed from that was made under section 201 or paragraph 202.16(1)(b) or (c) be suspended pending determination of the appeal;

(c) where the application of a disposition is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (b), make such other disposition, other than a disposition under section 202 or paragraph 202.16(1)(a), in respect of the accused as is applicable and appropriate in the circumstances pending the determination of the appeal; and

(d) give such directions as the judge thinks necessary for expediting the appeal.

Marginal note:Effect of suspension of disposition

(3) Where the application of a disposition appealed from is suspended pursuant to subsection (1) or by virtue of an order made under paragraph (2)(b),

(a) in the case where no disposition was in force in respect of the accused immediately before the coming into force of the disposition appealed from, any order for the interim release or detention of the accused that is in force immediately prior to the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c), pending the determination of the appeal; and

(b) in any other case, the disposition in force immediately before the coming into force of the disposition appealed from continues in force, subject to the making of a disposition under paragraph (2)(c).

R.S., 1985, c. N-5, s. 233;

1991, c. 43, s. 22.

Court Martial Appeal Court of Canada

Marginal note:Court established

234(1) There is hereby established a Court Martial Appeal Court of Canada, which shall hear and determine all appeals referred to it under this Division.

Marginal note:Judges

(a) not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and

(b) any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council.

Marginal note:Deputy judges of the Court

(2.1) Subject to subsection (2.2), any former judge of the Court Martial Appeal Court may, at the request of the Chief Justice of that Court made with the approval of the Governor in Council, act as a judge of the Court and while so acting has all the powers of a judge of the Court and shall be referred to as a deputy judge of the Court.

Marginal note:Approval of Governor in Council

(2.2) The Governor in Council may approve the making of requests under subsection (2.1) in general terms or for particular periods or purposes, and may limit the number of persons who may act under that subsection.

Marginal note:Salary

(2.3) A person who acts as a judge under subsection (2.1) shall be paid a salary for the period he or she acts at the rate fixed by the Judges Act for a judge of the Federal Court of Appeal or the Federal Court, other than a Chief Justice, less any amount otherwise payable to him or her under that Act in respect of that period, and shall also be paid the travel allowances that a judge is entitled to be paid under the Judges Act.

Marginal note:Giving of judgment after judge ceases to hold office

(2.4) If a judge of the Court Martial Appeal Court resigns his or her office or is appointed to another court or otherwise ceases to hold office, he or she may, at the request of the Chief Justice of the Court Martial Appeal Court, at any time within eight weeks after that event give judgment in any cause, action or matter previously tried by or heard before him or her as if he or she had continued in office.

Marginal note:Chief Justice

(3) The Governor in Council shall designate one of the judges of the Court Martial Appeal Court to be the Chief Justice thereof, who shall preside, when present, at any sittings of the Court and shall, subject to subsection (4), appoint another judge to preside at any sittings of the Court at which the Chief Justice is not present.

Marginal note:Absence or incapacity of Chief Justice

(4) Where the office of Chief Justice is vacant, or the Chief Justice is absent from Canada or is unable or unwilling to act, his powers shall be exercised and his duties performed by the senior judge who is in Canada and is able and willing to Act.

Marginal note:Sittings and hearings

235(1) The Court Martial Appeal Court may sit and hear appeals at any place or places, and the Chief Justice of the Court shall arrange for sittings and hearings as may be required.

Marginal note:Hearing of appeals and other matters

(2) Every appeal shall be heard by three judges of the Court Martial Appeal Court sitting together, the decision of the majority of whom shall be the decision of the Court, and any other matter before the Court shall be disposed of by the Chief Justice or by such other judge or judges of the Court as the Chief Justice may designate for that purpose.

Marginal note:Notification of dissent

(3) Where an appeal has been wholly or partially dismissed by the Court Martial Appeal Court and there has been dissent in the Court, the appellant shall forthwith be informed of that dissent.

Marginal note:Superior court of record

Marginal note:Evidence

(2) The Court Martial Appeal Court may hear evidence including new evidence, as it may deem expedient and the Court may sit in camera or in public.

Marginal note:Staff

(3) The officers, clerks and employees appointed to the Courts Administration Service shall perform the duties of their respective offices in relation to the Court Martial Appeal Court.

Marginal note:Authorization to execute Chief Justice’s functions

(4) The Chief Justice of the Court Martial Appeal Court may authorize any other judges of the Court to exercise or perform any of the powers or functions of the Chief Justice under this section and sections 234 and 235.

Marginal note:Expenses

237 A judge of the Court Martial Appeal Court is entitled to be paid travel allowances under the Judges Act as for attendances as judge of the Federal Court or the superior court to which the judge so entitled belongs.

R.S., c. N-4, s. 201;

R.S., c. 10(2nd Supp.), s. 64;

1984, c. 40, s. 47(F).

Disposition of Appeals by Court Martial Appeal Court of Canada

Marginal note:Powers on appeal against finding of guilty

238(1) On the hearing of an appeal respecting the legality of a finding of guilty on any charge, the Court Martial Appeal Court, if it allows the appeal, may set aside the finding and

Marginal note:Substitution of finding

239(1) Where an appellant has been found guilty of an offence and the court martial could, on the charge, have found the appellant guilty under section 133, 134 or 136 of some other offence or could have found the appellant guilty of some other offence on any alternative charge that was laid and, on the actual finding, it appears to the Court Martial Appeal Court that the facts proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the finding of guilty made by the court martial a finding of guilty of that other offence.

Marginal note:Sentence on substituted finding

(2) On the substitution of a finding of guilty under subsection (1), the Court Martial Appeal Court may, except where it allows an appeal under section 240.1,

(a) affirm the sentence imposed by the court martial if the court martial could legally have imposed that sentence on the substituted finding of guilty; or

(b) substitute for the sentence imposed by the court martial a sentence that is warranted in law.

(b) except if the finding is that of a General Court Martial, enter a finding of guilty with respect to the offence for which, in its opinion, the accused person should have been found guilty but for the illegality and

(i) impose the sentence in accordance with subsections (2) and (3), or

(ii) remit the matter to the court martial and direct it to impose a sentence in accordance with subsections (2) and (3).

Marginal note:Where no other finding of guilty

(2) Where the Court Martial Appeal Court has entered a finding of guilty and there is no other finding of guilty, the Court or the court martial shall impose a sentence that is warranted in law.

Marginal note:Where another finding of guilty

(3) Where the Court Martial Appeal Court has entered a finding of guilty and there is another finding of guilty, the Court or the court martial may

(a) affirm the sentence imposed by the court martial, if the court martial could legally have imposed the sentence on all of the findings; or

(b) substitute for the sentence imposed by the court martial a sentence that is warranted in law.

Marginal note:Appeal against decision

239.2 On the hearing of an appeal respecting the legality of a decision referred to in paragraph 230.1(d), the Court Martial Appeal Court may, if it allows the appeal, set aside the decision and direct a new trial by court martial on the charge.

Marginal note:Substitution of new sentence where illegal sentence set aside

240 On the hearing of an appeal respecting the legality of a sentence imposed by a court martial, the Court Martial Appeal Court, if it allows the appeal, may substitute for the sentence imposed by the court martial a sentence that is warranted in law.

R.S., 1985, c. N-5, s. 240;

1991, c. 43, s. 26;

1998, c. 35, s. 70.

Marginal note:Appeal against severity of sentence

240.1 On the hearing of an appeal respecting the severity of a sentence, the Court Martial Appeal Court shall consider the fitness of the sentence and, if it allows the appeal, may, on such evidence as it thinks fit to require or receive, substitute for the sentence imposed by the court martial a sentence that is warranted in law.

1991, c. 43, s. 26.

Marginal note:Appeal against finding of unfit or not responsible

240.2(1) On the hearing of an appeal against a finding of unfit to stand trial or not responsible on account of mental disorder, the Court Martial Appeal Court shall, subject to subsection (2), direct a new trial by court martial if it allows the appeal.

Marginal note:Finding after close of case for prosecution

(2) Where the finding of unfit to stand trial was made after the close of the case for the prosecution, the Court may, notwithstanding that the finding is proper, allow the appeal, set aside the finding and enter a finding of not guilty on any charge if it is of the opinion that the accused should have been acquitted on the charge at the close of the case for the prosecution.

Marginal note:Appeal against disposition

240.3 On the hearing of an appeal respecting the legality of a disposition made under section 201, 202 or 202.16, the Court Martial Appeal Court may, where it allows the appeal, set aside the disposition and

(a) make any disposition under section 201 or 202.16 that the court martial could have made;

(b) except in the case of a disposition made by a General Court Martial, remit the matter to the court martial for a rehearing, in whole or in part, in accordance with any directions that the Court considers appropriate; or

Marginal note:Appeal

240.4(1) The Court Martial Appeal Court may allow an appeal against an order made under subsection 202.121(7) for a stay of proceedings, if the Court Martial Appeal Court is of the opinion that the order is unreasonable or cannot be supported by the evidence.

Marginal note:Effect

(2) If the Court Martial Appeal Court allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused person is unfit to stand trial and the disposition made in respect of the accused person.

2005, c. 22, s. 60.

Marginal note:Appeal against order or decision

240.5(1) On the hearing of an appeal respecting the legality of a decision made under subsection 227.01(2), 227.04(1), 227.1(4) or 227.13(1), the Court Martial Appeal Court, or another court hearing the appeal, may dismiss the appeal, allow it and order a new hearing, quash the order or make an order that may be made under that provision.

Marginal note:Requirements relating to notice

(2) If the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.01(2), it shall cause the requirements set out in section 227.05 to be fulfilled.

Marginal note:Requirements relating to notice

(3) If the Court Martial Appeal Court or other court makes an order that may be made under subsection 227.04(1) or 227.13(1), it shall cause the Provost Marshal to be notified of the decision.

Marginal note:Removal of information from database

(4) If the Court Martial Appeal Court or other court makes an exemption order that may be made under subsection 227.1(4), it shall also make the order referred to in subsection 227.1(6).

Marginal note:Special power to disallow appeal

241 Notwithstanding anything in this Division, the Court Martial Appeal Court may disallow an appeal if, in the opinion of the Court, to be expressed in writing, there has been no substantial miscarriage of justice.

R.S., 1985, c. N-5, s. 241;

1998, c. 35, s. 92.

Marginal note:New sentence

241.1 Where a new sentence is substituted under subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the sentence imposed by the court martial ceases to have effect.

Marginal note:New trial

241.3 Where the Court Martial Appeal Court directs a new trial on a charge under section 238, 239.1, 239.2 or 240.2, the accused person shall be tried again as if no trial on that charge had been held.

1991, c. 43, s. 27.

Marginal note:Powers to mitigate, commute, remit and suspend new punishment

242 Where a punishment included in a sentence has been dealt with pursuant to subsection 238(3), 239(2) or 239.1(3) or section 240 or 240.1, the new punishment is subject to mitigation, commutation, remission or suspension in the same manner and to the same extent as if it had been imposed by the court martial that tried the appellant.

R.S., 1985, c. N-5, s. 242;

1991, c. 43, s. 28.

Marginal note:Appeal deemed abandoned

243 Where a review of a disposition in respect of which an appeal is taken under paragraph 230(e) by any person is commenced under the review provisions of the Criminal Code by that person, the appeal shall be deemed to have been abandoned.

R.S., 1985, c. N-5, s. 243;

1991, c. 43, s. 29.

Rules of Appeal Procedure

Marginal note:Chief Justice may make rules

244(1) The Chief Justice of the Court Martial Appeal Court may, with the approval of the Governor in Council, make rules respecting

(a) the seniority of members of the Court for the purpose of presiding at appeals;

(g) the circumstances in which, on the hearing of an appeal, the appellant may attend or appear before the Court;

(h) the provision for and the payment of fees of counsel for an appellant or a respondent, other than the Minister;

(h.1) the awarding and regulating of costs in the Court in favour of or against appellants and respondents; and

(i) the circumstances in which an appeal may be considered to be abandoned for want of prosecution, and the summary disposition by the Court of such appeals and of appeals showing no substantial grounds.

Marginal note:Publication

(2) No rule made under this section has effect until it has been published in the Canada Gazette.

R.S., 1985, c. N-5, s. 244;

1998, c. 35, s. 72.

Appeal to Supreme Court of Canada

Marginal note:Appeal by person tried

245(1) A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court

(a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

Marginal note:Appeal by Minister

(2) The Minister, or counsel instructed by the Minister for that purpose, may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court

(a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

Marginal note:Hearing and determination by Supreme Court of Canada

(3) The Supreme Court of Canada, in respect of the hearing and determination of an appeal under this section, has the same powers, duties and functions as the Court Martial Appeal Court has under this Act, and sections 238 to 242 apply with such adaptations and modifications as the circumstances require.

Marginal note:When appeal deemed abandoned

(4) An appeal to the Supreme Court of Canada that is not brought on for hearing by the appellant at the session of the Supreme Court of Canada during which the judgment appealed from was pronounced by the Court Martial Appeal Court, or at the next session of the Supreme Court of Canada, shall be deemed to be abandoned, unless otherwise ordered by the Supreme Court of Canada or a judge thereof.

DIVISION 10Release Pending Appeal

Marginal note:Release by court martial

248.1 Every person sentenced to a period of detention or imprisonment by a court martial has, within twenty-four hours after being so sentenced, the right to apply to that court martial or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the expiration of the time to appeal referred to in subsection 232(3) and, if there is an appeal, until the determination of the appeal.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 74.

Marginal note:Release by judge of the CMAC

248.2 Every person sentenced to a period of detention or imprisonment by a court martial who appeals under Division 9 has the right, if the person has not applied under section 248.1, to apply to a judge of the Court Martial Appeal Court or, in any circumstances that may be provided for by regulations made by the Governor in Council, to a military judge, for a direction that the person be released from detention or imprisonment until the determination of the appeal.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 74.

Marginal note:Court may direct release

248.3 On hearing an application to be released from detention or imprisonment, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released as provided for in sections 248.1 and 248.2 if the person establishes

(ii) if the appeal is against sentence only, that it would cause unnecessary hardship if the person were placed or retained in detention or imprisonment,

(iii) that the person will surrender himself into custody when directed to do so, and

(iv) that the person’s detention or imprisonment is not necessary in the interest of the public or the Canadian Forces.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 75.

Marginal note:Right of representative of Canadian Forces

248.4 On the hearing of an application to be released, counsel acting on behalf of the Canadian Forces shall be permitted to make representations if counsel so wishes after representations by or on behalf of the person making the application.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 76(F).

Marginal note:Undertaking if application granted

248.5 If an application for release is granted, the court martial, the military judge or the judge of the Court Martial Appeal Court, as the case may be, may direct that the person making the application be released on giving an undertaking to

Marginal note:Release from detention or imprisonment

248.6 Where a person is directed to be released from detention or imprisonment pursuant to this Division, the person in whose custody that person is shall forthwith release that person on his giving the undertaking referred to in section 248.5.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 92.

Marginal note:Return to duty

248.7 An officer or non-commissioned member who is released from detention or imprisonment pursuant to this Division shall be returned to duty unless the Chief of the Defence Staff, or an officer designated by the Chief of the Defence Staff, otherwise directs.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 92.

Marginal note:Review of conditions

248.8(1) The conditions of an undertaking referred to in section 248.5 may, on application by the person who gave the undertaking or by counsel for the Canadian Forces, be reviewed by the Court Martial Appeal Court and that Court may

Marginal note:New undertaking

(2) Where the conditions of an undertaking referred to in section 248.5 have been varied or substituted pursuant to subsection (1), the person who gave the undertaking shall forthwith be placed in custody unless the person gives an undertaking to comply with such varied or substituted conditions.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, s. 78(F).

Marginal note:Breach of undertaking

248.81(1) Where, on application by counsel for the Canadian Forces, an authority referred to in subsection (2) is satisfied, on cause being shown, that an undertaking given by a person under section 248.5 has been breached or is likely to be breached, that authority may

(a) cancel the direction that authorized the person to be released and direct that the person be detained in custody; or

(b) direct that the person may remain at liberty on his giving a new undertaking in accordance with section 248.5.

Marginal note:Determination of authority

(2) The authority to whom an application under subsection (1) may be made is

(a) where the undertaking was given in respect of a direction made pursuant to an application under section 248.1, a military judge; or

(b) subject to subsection (3), where the undertaking was given in respect of a direction made pursuant to an application under section 248.2, a judge of the Court Martial Appeal Court.

Marginal note:Exception

(3) In the circumstances provided for in regulations made by the Governor in Council, the authority to whom an application under subsection (1) may be made in respect of a direction made pursuant to an application under section 248.2 is a military judge.

Marginal note:Right to make representations

(4) The person referred to in subsection (1) has the right to be present at the hearing of the application referred to in that subsection and the right to make representations at that hearing.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1993, c. 34, s. 95(F);

1998, c. 35, s. 79.

Marginal note:Rules

248.82 The Chief Justice of the Court Martial Appeal Court, with the approval of the Governor in Council, may make rules respecting applications under sections 248.2, 248.8 and 248.81.

Marginal note:Idem

(2) The Canadian Forces may appeal any direction under this Division that a person be released from detention or imprisonment or any order under section 248.81.

Marginal note:Grounds may be considered

(3) When hearing an appeal under this section, the Court Martial Appeal Court may, in all cases where an appeal has been filed, take into consideration the grounds of appeal.

Marginal note:Application of provisions

(4) The provisions of this Division apply, with such modifications as the circumstances require, to any appeal under this section.

R.S., 1985, c. 31 (1st Supp.), s. 57;

1998, c. 35, ss. 80, 92.

Marginal note:Surrender into custody

248.91 A person released pending appeal under this Division may surrender himself or herself into custody at any time to serve a sentence of detention or imprisonment imposed on the person.

1998, c. 35, s. 81.

DIVISION 11Review

Review Authorities

Marginal note:Governor in Council

249(1) The review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council.

Marginal note:Application necessary

(2) The review of a finding of guilty made and any punishment imposed by a court martial must be on application of the person found guilty or the Chief of the Defence Staff.

Marginal note:Chief of the Defence Staff and other military authorities

(3) The review authorities in respect of findings of guilty made and punishments imposed by persons presiding at summary trials are the Chief of the Defence Staff and such other military authorities as are prescribed by the Governor in Council in regulations.

Marginal note:When authorities may act

(4) A review authority in respect of any finding of guilty made and any punishment imposed by a person presiding at a summary trial may act on its own initiative or on application of the person found guilty made in accordance with regulations made by the Governor in Council.

R.S., 1985, c. N-5, s. 249;

1998, c. 35, s. 82.

Marginal note:Royal prerogative

249.1 Nothing in this Division in any manner limits or affects Her Majesty’s royal prerogative of mercy.

1998, c. 35, s. 82.

Quashing of Findings

Marginal note:Authority to quash

249.11(1) Any finding of guilty made by a service tribunal may be quashed by a review authority.

Marginal note:Effect of complete quashing

(2) Where no other finding of guilty remains after a finding of guilty has been quashed under subsection (1), the whole of the sentence ceases to have force and effect and the person who had been found guilty may be tried as if no previous trial had been held.

Marginal note:Effect of partial quashing

(3) Where another finding of guilty remains after a finding of guilty has been quashed under subsection (1) and any punishment included in the sentence is in excess of the punishment authorized in respect of any remaining finding of guilty or is, in the opinion of the review authority that made the decision to quash, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

Substitution of Findings

Marginal note:Substitution of illegal and unsubstantiated findings

249.12(1) A review authority may substitute a new finding for any finding of guilty that is made by a service tribunal and that is illegal or cannot be supported by the evidence if the new finding could validly have been made on the charge to which the new finding relates and it appears that the service tribunal was satisfied of the facts establishing the offence specified or involved in the new finding.

Marginal note:Substitution of finding in relation to other offence

(2) A review authority may substitute for a finding of guilty made by a service tribunal a new finding of guilty of an offence, other than that of which the service tribunal found the offender guilty, if it appears that the facts proved the offender guilty of the other offence and the service tribunal could have found the offender guilty of the other offence on the charge under section 133, 134 or 136 or on any alternative charge that was laid.

Marginal note:Effect on sentence

(3) Where a new finding has been substituted under this section for a finding made by a service tribunal and any punishment included in the sentence passed by the service tribunal is in excess of the punishment authorized in respect of the new finding or is, in the opinion of the review authority that substituted the new finding, unduly severe, the review authority shall substitute for that punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

Substitution of Punishments

Marginal note:Authority to substitute punishment

249.13 A review authority may substitute for a sentence passed by a service tribunal in which is included an illegal punishment any new punishment or punishments that it considers appropriate.

1998, c. 35, s. 82.

Mitigation, Commutation and Remission of Punishments

Marginal note:Authority to mitigate, commute and remit punishments

249.14 A review authority may mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal.

1998, c. 35, s. 82.

Conditions Applicable to New Punishments

Marginal note:Conditions

249.15 The following conditions apply where a new punishment under this Division replaces, by way of substitution or commutation, a punishment imposed by a service tribunal:

(a) the new punishment may not be a punishment that could not legally have been imposed on the charges of which the offender was found guilty and in respect of which the findings have not been quashed or set aside by way of substitution;

(b) the new punishment may not be higher in the scale of punishments than the punishment imposed in the first instance and, if the sentence passed included a punishment of incarceration, the new punishment may not involve a period of incarceration exceeding the period of incarceration included in that sentence;

(c) where the new punishment is detention and the punishment that it replaces is imprisonment, the term of the detention after the date of alteration may in no case exceed the term of the imprisonment remaining to be served and, in any event, may not exceed ninety days; and

(d) where the offence of which a person has been found guilty is an offence for which the punishment of imprisonment for life is mandatory under section 73, 74, 75 or 76, for which the punishment of dismissal with disgrace from Her Majesty’s service or dismissal from Her Majesty’s service is mandatory under section 92 or to which paragraph 130(2)(a) applies, the punishment may, subject to this section, be altered to any one or more of the punishments lower in the scale of punishments than the punishment provided for in that section or any other enactment prescribing the offence.

1998, c. 35, s. 82.

Petition for New Trial

Marginal note:Right to petition on new evidence

249.16(1) Every person who has been tried and found guilty by a court martial has a right, on grounds of new evidence discovered subsequent to the trial, to petition the Minister for a new trial.

Marginal note:Reference to CMAC for determination

(2) The Minister may refer a petition to the Court Martial Appeal Court for a hearing and determination by that Court as if it were an appeal by the petitioner.

Marginal note:Reference to CMAC for opinion

(3) The Minister may refer a petition or any question relating to a petition to the Court Martial Appeal Court for its opinion and the Court shall furnish its opinion accordingly.

Marginal note:New trial

(4) If the Minister is of the opinion that a petition should be granted, the Minister may order a new trial and the petitioner may be tried again as if no trial had been held.

1998, c. 35, s. 82.

DIVISION 12Miscellaneous Provisions

Right to be Represented

Marginal note:Right to be represented

249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council.

1998, c. 35, s. 82.

Defence Counsel Services

Marginal note:Appointment

249.18(1) The Minister may appoint an officer who is a barrister or advocate with at least ten years standing at the bar of a province to be the Director of Defence Counsel Services.

Marginal note:Tenure of office

(2) The Director of Defence Counsel Services holds office during good behaviour for a term of not more than four years. The Minister may remove the Director of Defence Counsel Services from office for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.

Marginal note:Powers of inquiry committee

(2.1) An inquiry committee has the same powers, rights and privileges — other than the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

Marginal note:Re-appointment

Marginal note:Duties and functions

249.19 The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.

1998, c. 35, s. 82.

Marginal note:Relationship to Judge Advocate General

249.2(1) The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General.

Marginal note:General instructions

(2) The Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services.

Marginal note:Instructions must be public

(3) The Director of Defence Counsel Services shall ensure that the general instructions and guidelines are available to the public.

1998, c. 35, s. 82.

Marginal note:Barristers and advocates to assist

249.21(1) The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.

Marginal note:Counsel

(2) The Director of Defence Counsel Services may engage on a temporary basis the services of counsel to assist the Director of Defence Counsel Services.

Marginal note:Remuneration

(3) The Director of Defence Counsel Services may, subject to any applicable Treasury Board directives, establish the terms and conditions of engagement and fix the remuneration and expenses of counsel engaged under subsection (2).

Witnesses at Courts Martial and before Commissioners

Marginal note:Summonses to witnesses

249.22(1) Every person required to give evidence before a court martial may be summoned by a military judge, the Court Martial Administrator or the court martial.

Marginal note:Summonses to witnesses

(2) Every person required to give evidence before a commissioner taking evidence under this Act may be summoned by a military judge, the Court Martial Administrator or the commissioner.

Marginal note:Production of documents

(3) A person summoned under this section may be required to bring and produce at the court martial or before the commissioner taking evidence under this Act any documents in the possession or under the control of the person that relate to the matters in issue.

1998, c. 35, s. 82.

Warrant for Arrest on Non-Appearance of Accused

Marginal note:Non-appearance of accused

249.23 Where an accused person has been duly summoned or ordered to appear before a court martial, the court martial may issue a warrant in the form prescribed in regulations made by the Governor in Council for the arrest of the accused person if the accused person

(b) having appeared before the court martial, fails to attend before the court martial as required.

1998, c. 35, s. 82.

Effect of New Punishment

Marginal note:Force and effect

249.24 Where a new punishment, by reason of substitution or commutation, replaces a punishment imposed by a service tribunal, the new punishment has force and effect as if it had been imposed by the service tribunal in the first instance and the provisions of the Code of Service Discipline apply accordingly but, where the new punishment involves incarceration, the term of the new punishment shall be reckoned from the date of substitution or commutation, as the case may be.

1998, c. 35, s. 82.

Restitution of Property

Marginal note:Restitution of property in case of conviction

249.25(1) Where a person is convicted of an offence under the Code of Service Discipline, the service tribunal shall order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

Marginal note:Restitution where no conviction, but offence committed

(2) Where an accused person is tried for an offence but is not convicted and it appears to the service tribunal that an offence has been committed, the service tribunal may order that any property obtained by the commission of the offence shall be restored to the person apparently entitled to it if, at the time of the trial, the property is before the service tribunal or has been detained so that it can be immediately restored under the order to the person so entitled.

Marginal note:Exceptions

(a) property to which an innocent purchaser for value has acquired lawful title;

(b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it; or

(c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed.

Marginal note:Execution of order for restitution

(4) An order made under this section shall be executed by the persons by whom the process of the service tribunal is ordinarily executed.

1998, c. 35, s. 82.

Reference to Ranks

Marginal note:Reference to ranks

249.26 Every reference in this Part to the rank of an officer or non-commissioned member includes a person who holds any equivalent relative rank, whether that person is attached, seconded or on loan to the Canadian Forces.

DIVISION 1Military Police Complaints Commission

Establishment and Organization

Marginal note:Commission established

250.1(1) There is established a commission, called the Military Police Complaints Commission, consisting of a Chairperson and not more than four other members to be appointed by the Governor in Council.

Marginal note:Full- or part-time

Marginal note:Tenure of office and removal

(3) Each member holds office during good behaviour for a term not exceeding five years but may be removed by the Governor in Council for cause.

Marginal note:Re-appointment

(4) A member is eligible to be re-appointed on the expiration of a first or subsequent term of office.

Marginal note:Duties of full-time members

(5) Full-time members shall devote the whole of their time to the performance of their duties under this Act.

Marginal note:Conflict of interest — part-time members

(6) Part-time members may not accept or hold any office or employment during their term of office that is inconsistent with their duties under this Act.

Marginal note:Eligibility

(7) An officer, a non-commissioned member or an employee of the Department is not eligible to be a member of the Complaints Commission.

Marginal note:Remuneration

(8) The members are entitled to be paid for their services the remuneration and allowances fixed by the Governor in Council.

Marginal note:Travel and living expenses

(9) The members are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of work, if full-time members, or their ordinary place of residence, if part-time members, subject to any applicable Treasury Board directives.

(c) to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

Marginal note:Oath of office

(11) Every member shall, before commencing the duties of office, take the following oath of office:

I, , do solemnly swear (or affirm) that I will faithfully and honestly fulfil my duties as a member of the Military Police Complaints Commission in conformity with the requirements of the National Defence Act, and of all rules and instructions under that Act applicable to the Military Police Complaints Commission, and that I will not disclose or make known to any person not legally entitled to it any knowledge or information obtained by me by reason of my office. (And in the case of an oath: So help me God.)

Chairperson

Marginal note:Chief executive officer

250.11(1) The Chairperson is the chief executive officer of the Complaints Commission and has supervision over and direction of its work and staff.

Marginal note:Absence or incapacity

(2) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Minister may authorize any member of the Complaints Commission to exercise the powers and perform the duties and functions of the Chairperson.

Marginal note:Delegation

(3) The Chairperson may delegate to a member of the Complaints Commission any of the Chairperson’s powers, duties or functions under this Act, except the power to delegate under this subsection and the duty to submit an annual report under subsection 250.17(1).

1998, c. 35, s. 82.

Head Office

Marginal note:Head Office

250.12 The head office of the Complaints Commission shall be at the place in Canada designated by the Governor in Council.

1998, c. 35, s. 82.

Staff

Marginal note:Staff

Marginal note:Experts

(2) The Complaints Commission may, with the approval of the Treasury Board, engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Complaints Commission in its work, establish the terms and conditions of their engagement and fix and pay their remuneration and expenses.

1998, c. 35, s. 82.

Duty to Act Expeditiously

Marginal note:Duty to act expeditiously

250.14 The Complaints Commission shall deal with all matters before it as informally and expeditiously as the circumstances and the considerations of fairness permit.

Rules

Marginal note:Rules

(a) the manner of dealing with matters and business before the Complaints Commission, including the conduct of investigations and hearings by the Complaints Commission;

(b) the apportionment of the work of the Complaints Commission among its members and the assignment of members to review complaints; and

(c) the performance of the duties and functions of the Complaints Commission.

1998, c. 35, s. 82.

Immunity

Marginal note:Protection of members

250.16 No criminal or civil proceedings lie against any member of the Complaints Commission, or against any person acting on behalf of the Complaints Commission, for anything done, reported or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Complaints Commission.

1998, c. 35, s. 82.

Annual Report

Marginal note:Annual Report

250.17(1) The Chairperson shall, within three months after the end of each year, submit to the Minister a report of the Complaints Commission’s activities during that year and its recommendations, if any.

Marginal note:Tabling in Parliament

(2) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

1998, c. 35, s. 82.

DIVISION 2Complaints

SUBDIVISION 1Right to Complain

Conduct Complaints

Marginal note:Complaints about military police

250.18(1) Any person, including any officer or non-commissioned member, may make a complaint under this Division about the conduct of a member of the military police in the performance of any of the policing duties or functions that are prescribed for the purposes of this section in regulations made by the Governor in Council.

Marginal note:Complainant need not be affected

(2) A conduct complaint may be made whether or not the complainant is affected by the subject-matter of the complaint.

Marginal note:No penalty for complaint

(3) A person may not be penalized for exercising the right to make a conduct complaint so long as the complaint is made in good faith.

Interference Complaints

Marginal note:Complaints by military police

250.19(1) Any member of the military police who conducts or supervises a military police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person under this Division.

Marginal note:Improper interference

(2) For the purposes of this section, improper interference with an investigation includes intimidation and abuse of authority.

Marginal note:No penalty for complaint

(3) A person may not be penalized for exercising the right to make an interference complaint so long as the complaint is made in good faith.

Time Limit

Marginal note:Time limit

250.2 No complaint may be made more than one year after the event giving rise to the complaint unless the Chairperson, at the request of the complainant, decides that it is reasonable in the circumstances to extend the time.

1998, c. 35, s. 82.

To Whom Complaint May be Made

Marginal note:To whom complaint may be made

250.21(1) A conduct complaint or an interference complaint may be made, either orally or in writing, to the Chairperson, the Judge Advocate General or the Provost Marshal. A conduct complaint may also be made to any member of the military police.

Marginal note:Acknowledgement and notice of complaint

(b) ensure that an acknowledgement of its receipt is sent as soon as practicable to the complainant; and

(c) ensure that notice of the complaint is sent as soon as practicable

(i) in the case of a conduct complaint, to the Chairperson and the Provost Marshal,

(ii) in the case of an interference complaint concerning an officer or a non-commissioned member, to the Chairperson, the Chief of the Defence Staff, the Judge Advocate General and the Provost Marshal, and

(iii) in the case of an interference complaint concerning a senior official of the Department, to the Chairperson, the Deputy Minister, the Judge Advocate General and the Provost Marshal.

Marginal note:Notice to subject of conduct complaint

250.22 As soon as practicable after receiving or being notified of a conduct complaint, the Provost Marshal shall send a written notice of the substance of the complaint to the person whose conduct is the subject of the complaint unless, in the Provost Marshal’s opinion, to do so might adversely affect or hinder any investigation under this Act.

Marginal note:Notice to subject of interference complaint

250.23 As soon as practicable after receiving or being notified of an interference complaint, the Chairperson shall send a written notice of the substance of the complaint to the person who is the subject of the complaint unless, in the Chairperson’s opinion, to do so might adversely affect or hinder any investigation under this Act.

Record of Complaints

Marginal note:Record of complaints

250.25 The Provost Marshal shall establish and maintain a record of all complaints received under this Division and, on request, make available any information contained in that record to the Complaints Commission.

Subdivision 2

Disposal of Conduct Complaints

Marginal note:Provost Marshal responsible

250.26(1) The Provost Marshal is responsible for dealing with conduct complaints.

Marginal note:Complaint about Provost Marshal

(2) If a conduct complaint is about the conduct of the Provost Marshal, the Chief of the Defence Staff is responsible for dealing with the complaint and has all the powers and duties of the Provost Marshal under this Division.

Marginal note:Deadline for resolving or disposing of complaint

250.261 The Provost Marshal shall resolve or dispose of a conduct complaint — other than a complaint that results in an investigation of an alleged criminal or service offence — within one year after receiving or being notified of it.

2013, c. 24, s. 83.

Marginal note:Informal resolution

250.27(1) On receiving or being notified of a conduct complaint, the Provost Marshal shall consider whether it can be disposed of informally and, with the consent of the complainant and the person who is the subject of the complaint, the Provost Marshal may attempt to resolve it informally.

Marginal note:Restriction

(2) Subsection (1) does not apply if the complaint is of a type prescribed in regulations made by the Governor in Council.

Marginal note:Statements not admissible

(3) No answer given or statement made by the complainant or the person who is the subject of the complaint in the course of attempting to resolve a complaint informally may be used in any disciplinary, criminal, civil or administrative proceedings, other than a hearing or proceeding in respect of an allegation that, with intent to mislead, the complainant or the person who is the subject of the complaint gave an answer or made a statement knowing it to be false.

Marginal note:Right to refuse or end informal resolution

(4) The Provost Marshal may direct that no attempt at informal resolution be started or that an attempt be ended if, in the opinion of the Provost Marshal,

(b) the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; or

(c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

Marginal note:Notice

(3) If a direction is made under subsection (2), the Provost Marshal shall send to the complainant and, if the person who is the subject of the complaint was notified of the complaint under section 250.22, to that person, a notice in writing setting out

Marginal note:Report on investigation

250.29 On the completion of an investigation into a conduct complaint, the Provost Marshal shall send to the complainant, the person who is the subject of the complaint and the Chairperson a report setting out

Marginal note:Status reports

250.3(1) Within sixty days after receiving or being notified of a conduct complaint, the Provost Marshal shall, if the complaint has not been resolved or disposed of before that time, and then each thirty days afterwards until the complaint is dealt with, send to the following persons a report on the status of the complaint:

Marginal note:Six-month report

(2) If a conduct complaint has not been resolved or disposed of within six months, the Provost Marshal shall in each report sent after that period explain why not.

Marginal note:Exception

(3) No report shall be sent to the person who is the subject of a conduct complaint if, in the opinion of the Provost Marshal, sending the report might adversely affect or hinder any investigation under this Act.

Review by Complaints Commission

Marginal note:Reference to Complaints Commission

250.31(1) A complainant who is dissatisfied with a direction under subsection 250.27(4) or 250.28(2) in respect of a conduct complaint or the disposition of a conduct complaint as set out in a report under section 250.29 may refer the complaint in writing to the Complaints Commission for review.

Marginal note:Information to be provided

(2) If a complainant refers a complaint to the Complaints Commission under subsection (1),

(a) the Chairperson shall send to the Provost Marshal a copy of the complaint; and

(b) the Provost Marshal shall provide the Chairperson with a copy of the notice sent under subsection 250.27(5) or 250.28(3), or of the report sent under section 250.29, in respect of the complaint and all information and materials relevant to the complaint.

Marginal note:Review by Chairperson

250.32(1) The Chairperson shall review the complaint to which a request for review relates as soon as practicable after receiving the request.

Marginal note:Chairperson may investigate

(2) In conducting a review of a complaint, the Chairperson may investigate any matter relating to the complaint.

Marginal note:Report

(3) At the completion of the review, the Chairperson shall send a report to the Minister, the Chief of the Defence Staff and the Provost Marshal setting out the Chairperson’s findings and recommendations with respect to the complaint.

Marginal note:Status reports

250.33(1) Within sixty days after a complaint is referred to the Commission for a review, the Chairperson shall, if the review has not been completed, and then each thirty days afterwards until it is completed, send a report on the status of the complaint to the complainant and the person who is the subject of the complaint.

Marginal note:Six-month report

(2) If the review has not been completed within six months, the Chairperson shall in each report sent after that period explain why not.

Marginal note:Exception

(3) No report shall be sent to the person who is the subject of a conduct complaint if, in the Chairperson’s opinion, sending the report might adversely affect or hinder any investigation under this Act.

(b) the complaint is one that could more appropriately be dealt with according to a procedure provided under another Part of this Act or under any other Act of Parliament; or

(c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

Marginal note:Notice

(3) If the Chairperson makes a direction, the Chairperson shall send to the complainant, the person who is the subject of the complaint, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a notice in writing setting out the direction and the reasons why it was made.

Marginal note:Report on investigation

250.36 On the completion of an investigation into an interference complaint, the Chairperson shall prepare and send a report setting out a summary of the complaint and the Chairperson’s findings and recommendations to

Marginal note:Status reports

250.37(1) Within sixty days after being notified of an interference complaint, the Chairperson shall, if the complaint has not been resolved, disposed of or otherwise dealt with before that time, and then each thirty days afterwards until the complaint is dealt with, send a report on the status of the complaint to

DIVISION 3Investigations and Hearings by Complaints Commission

Marginal note:Public interest

250.38(1) If at any time the Chairperson considers it advisable in the public interest, the Chairperson may cause the Complaints Commission to conduct an investigation and, if warranted, to hold a hearing into a conduct complaint or an interference complaint.

Marginal note:Withdrawn complaint

(2) The Chairperson may cause an investigation to be held in respect of a complaint even if it has been withdrawn.

Marginal note:Notice

(3) If the Chairperson decides to cause an investigation to be held, the Chairperson shall send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

Marginal note:Exception

(4) No notice shall be sent to the person who is the subject of the complaint if, in the Chairperson’s opinion, sending the notice might adversely affect or hinder any investigation under this Act.

Marginal note:Duties suspended

(5) If the Chairperson acts in respect of a conduct complaint under subsection (1), the Provost Marshal is not required to investigate, report on or otherwise deal with the complaint until the Provost Marshal receives a report under section 250.53 with respect to the complaint.

Marginal note:Report on investigation

250.39 On completion of an investigation under subsection 250.38(1), the Chairperson shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint, unless the Chairperson has caused, or intends to cause, a hearing to be held to inquire into the complaint.

Marginal note:Assignment of members to conduct hearing

250.4(1) If the Chairperson decides to cause a hearing to be held, the Chairperson shall

(a) assign one or more members of the Complaints Commission to conduct the hearing; and

(b) send a notice in writing of the decision and the reasons for the decision to the complainant, the person who is the subject of the complaint, the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal.

Marginal note:Deeming

(2) For the purposes of this Part, the member or members of the Complaints Commission who conduct a hearing are deemed to be the Complaints Commission.

Marginal note:Powers

250.41(1) When conducting a hearing, the Complaints Commission has, in relation to the complaint before it, power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things under their control that it considers necessary to the full investigation and consideration of matters before it;

(c) to receive and accept any evidence and information that it sees fit, whether admissible in a court of law or not.

Marginal note:Restriction

(2) Notwithstanding subsection (1), the Complaints Commission may not receive or accept

(a) any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;

(b) any answer given or statement made before a board of inquiry or summary investigation;

(c) any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under this Division into another complaint;

(d) any answer given or statement made before a court of law or tribunal; or

(e) any answer given or statement made while attempting to resolve a conduct complaint informally under subsection 250.27(1).

1998, c. 35, s. 82.

Marginal note:Hearing in public

250.42 A hearing is to be held in public, except that the Complaints Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed:

(a) information that, if disclosed, could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;

(b) information that, if disclosed, could reasonably be expected to be injurious to the administration of justice, including law enforcement; and

(c) information affecting a person’s privacy or security interest, if that interest outweighs the public’s interest in the information.

Marginal note:Notice of hearing

250.43(1) As soon as practicable before the commencement of a hearing, the Complaints Commission shall serve a notice in writing of the time and place appointed for the hearing on the complainant and the person who is the subject of the complaint.

Marginal note:Convenience to be considered

(2) If a person on whom a notice is served wishes to appear before the Complaints Commission, the Complaints Commission must consider the convenience of that person in fixing the time and the place for the hearing.

Marginal note:Delay of hearing

(3) If the complaint relates to conduct that is also the subject of disciplinary or criminal proceedings before a court or tribunal of first instance, the hearing may not take place until the disciplinary or criminal proceedings are completed.

Marginal note:Witness not excused from testifying

250.45(1) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Complaints Commission when required to do so by the Complaints Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Marginal note:Answer not receivable

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal, administrative or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false.

1998, c. 35, s. 82.

Marginal note:Expenses

250.46 Travel and living expenses incurred in appearing before the Complaints Commission shall, in the discretion of the Complaints Commission, be paid in accordance with applicable Treasury Board directives, to the complainant and to the person who is the subject of the complaint, and to their counsel, if the Complaints Commission holds a hearing at a place in Canada that is not their ordinary place of residence.

Marginal note:Return of documents, etc.

250.47 Documents and things presented to the Complaints Commission at a hearing shall, on request, be returned to the person who presented them within a reasonable time after completion of the Complaints Commission’s report on the complaint.

1998, c. 35, s. 82.

Marginal note:Report

250.48 On completion of a hearing, the Complaints Commission shall prepare and send to the Minister, the Chief of the Defence Staff or the Deputy Minister, as the case may be, the Judge Advocate General and the Provost Marshal a report in writing setting out its findings and recommendations with respect to the complaint.

DIVISION 4Review and Final Report

Marginal note:Review — conduct complaint

250.49(1) On receipt of a report under subsection 250.32(3) or section 250.39 or 250.48 in respect of a conduct complaint, the Provost Marshal shall review the complaint in light of the findings and recommendations set out in the report.

Marginal note:Exception

(2) If the Provost Marshal is the subject of the complaint, the review shall be conducted by the Chief of the Defence Staff.

Marginal note:Review — interference complaint

250.5(1) On receipt of a report under section 250.36, 250.39 or 250.48 in respect of an interference complaint, the complaint shall be reviewed in light of the findings and recommendations set out in the report by

(a) the Chief of the Defence Staff, if the person who is the subject of the complaint is an officer or a non-commissioned member; and

(b) the Deputy Minister, if the person who is the subject of the complaint is a senior official of the Department.

Marginal note:Exception

(2) If the Chief of the Defence Staff or the Deputy Minister is the subject of the complaint, the review shall be conducted by the Minister.

Marginal note:Notice of action

250.51(1) The person who reviews a report under section 250.49 or 250.5 shall notify in writing the Minister and the Chairperson of any action that has been or will be taken with respect to the complaint.

Marginal note:Reasons

(2) If the person decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.

1998, c. 35, s. 82.

Marginal note:Notice of action

250.52(1) If the Minister reviews a report by reason of subsection 250.5(2), the Minister shall notify the Chairperson in writing of any action that has been or will be taken with respect to the complaint.

Marginal note:Reasons

(2) If the Minister decides not to act on any findings or recommendations set out in the report, the reasons for not so acting must be included in the notice.

1998, c. 35, s. 82.

Marginal note:Final report by Chairperson

250.53(1) After receiving and considering a notice sent under section 250.51 or 250.52, the Chairperson shall prepare a final report in writing setting out the Chairperson’s findings and recommendations with respect to the complaint.

Marginal note:Recipients of report

(2) A copy of the final report shall be sent to the Minister, the Deputy Minister, the Chief of the Defence Staff, the Judge Advocate General, the Provost Marshal, the complainant, the person who is the subject of the complaint and all persons who have satisfied the Complaints Commission that they have a substantial and direct interest in the complaint.

PART VMiscellaneous Provisions Having General Application

Oaths

Marginal note:Oaths

251 At summary trials and courts martial, and at proceedings before a board of inquiry or a commissioner taking evidence under this Act, an oath shall be taken by or administered to the following persons in the manner and in the forms prescribed in regulations made by the Governor in Council:

Marginal note:Effect

(3) An oath or a solemn affirmation under this Act has, in respect of any prosecution under the Criminal Code, the same force and effect as an oath taken before a civil court.

1998, c. 35, s. 82.

Witness Fees and Allowances

Marginal note:Witness fees and allowances

251.2 A person, other than an officer or non-commissioned member or an officer or employee of the Department, summoned or attending to give evidence before a court martial, the Grievances Committee, the Military Judges Inquiry Committee, the Military Police Complaints Commission, a board of inquiry, a commissioner taking evidence under this Act or any inquiry committee established under the regulations is entitled in the discretion of that body to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.

Disposal by Civil Authorities of Deserters and Absentees without Leave

Definition of justice

252(1) For the purposes of this section and sections 253 and 254, justice means a justice as defined in the Criminal Code.

Marginal note:Powers of arrest on reasonable grounds

(2) Any peace officer who on reasonable grounds believes or, if no peace officer is immediately available, any officer or non-commissioned member who believes on reasonable grounds that a person is a deserter or an absentee without leave may apprehend that person and forthwith bring the person before a justice.

Marginal note:Issue of warrant

(3) A justice, if satisfied by evidence on oath that a deserter or an absentee without leave is, or is believed on reasonable grounds to be, within the jurisdiction of that justice, may issue a warrant authorizing the deserter or absentee without leave to be apprehended and brought forthwith before that or any other justice.

Marginal note:Justice’s power to examine into case

(4) Where a person is brought before a justice charged with being a deserter or absentee without leave under this Act, the justice may examine into the case in like manner as if that person were brought before the justice accused of an indictable offence.

R.S., 1985, c. N-5, s. 252;

R.S., 1985, c. 31 (1st Supp.), s. 58.

Marginal note:Disposal of person brought before justice

253(1) A justice, if satisfied either by evidence on oath or by the admission of a person brought before the justice under section 252 that the person is a deserter or absentee without leave, shall cause him to be delivered into service custody in such manner as the justice may deem most expedient and, until the person can be so delivered, the justice may cause the person to be held in civil custody for such time as appears to the justice reasonably necessary for the purpose of delivering the person into service custody.

Marginal note:Verification of admission

(2) Where a person has admitted to being a deserter or absentee without leave and evidence of the truth or falsehood of the admission is not then forthcoming, the justice before whom the person is brought shall remand him for the purpose of obtaining information respecting the truth or falsehood of the admission and, for that purpose, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.

Marginal note:Remands

(3) A justice before whom a person is brought under section 252 may from time to time remand him for a period not exceeding eight days on each appearance before the justice, but the whole period during which a person is so remanded shall not be longer than appears to the justice reasonably necessary for the purpose of obtaining the information referred to in subsection (2).

Marginal note:Report following disposal

(4) Where a justice before whom a person is brought under section 252 causes him to be delivered into service custody or to be held in civil custody, the justice shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.

R.S., c. N-4, s. 214.

Marginal note:Delivery by constable into service custody

254(1) Where a person surrenders himself to a constable and admits desertion or absence without leave, the constable in charge of the police station to which the person is brought shall forthwith inquire into the case and, if from the admission it appears to the constable on inquiring into the case that the person is a deserter or absentee without leave, the constable may cause the person to be delivered into service custody, without bringing the person before a justice.

Marginal note:Report where person delivered into service custody

(2) Where a constable causes a person to be delivered into service custody pursuant to subsection (1), the constable shall transmit a report, which shall contain the particulars and be in the form prescribed by the Minister, to such authorities of the Canadian Forces as the Minister may prescribe.

R.S., c. N-4, s. 214.

Certificate of Civil Courts

Marginal note:Transmission of certificate where person tried civilly

255 Where any person subject to the Code of Service Discipline has at any time been tried by a civil court, the clerk of that court or other authority having custody of the records of the court shall, if required by any officer of the Canadian Forces, transmit to that officer a certificate setting out the offence for which that person was tried, together with the judgment or order of the court thereon, and shall be allowed for that certificate the fee authorized by law.

R.S., c. N-4, s. 215.

Duties respecting Incarceration

Marginal note:Execution of warrants

256(1) Every warden, governor, jailer, commanding officer, commandant or other keeper of a penitentiary, civil prison, service prison or detention barrack shall take cognizance of any warrant of committal purporting to be signed by a committing authority referred to in section 219 or 220, shall receive and detain, according to the exigency of that warrant, the person referred to therein and delivered into the custody of that warden, governor, jailer, commanding officer, commandant or other keeper, as the case may be, and shall confine that person until discharged or delivered over in due course of law.

Manoeuvres

Marginal note:Authorization by Minister

257(1) For the purpose of training the Canadian Forces, the Minister may authorize the execution of military exercises or movements, referred to in this section as “manoeuvres”, over and on such parts of Canada and during such periods as are specified.

Marginal note:Notice

(2) Notice of manoeuvres shall, by appropriate publication, be given to the inhabitants of any area concerned.

Marginal note:Powers

(3) Units and other elements of the Canadian Forces may execute manoeuvres on and pass over such areas as are specified under subsection (1), stop or control all traffic thereover whether by water, land or air, draw water from such sources as are available, and do all things reasonably necessary for the execution of the manoeuvres.

Marginal note:Interference

(4) Any person who wilfully obstructs or interferes with manoeuvres authorized under this section and any animal, vehicle, vessel or aircraft under the person’s control may be forcibly removed by any constable or by any officer, or by any non-commissioned member on the order of any officer.

Marginal note:Bar of action

(5) No action lies by reason only of the execution of manoeuvres authorized under this section.

Marginal note:Compensation

260 Any person who suffers loss, damage or injury by reason of the exercise of any of the powers conferred by section 257 shall be compensated from the Consolidated Revenue Fund.

R.S., 1985, c. N-5, s. 260;

R.S., 1985, c. 22 (4th Supp.), s. 74.

Exemption from Tolls

Marginal note:Duties or tolls on roads, bridges, etc.

261(1) No duties or tolls, otherwise payable by law in respect of the use of any pier, wharf, quay, landing-place, highway, road, right-of-way, bridge or canal, shall be paid by or demanded from any unit or other element of the Canadian Forces or any officer or non-commissioned member when on duty or any person under escort or in respect of the movement of any materiel, except that the Minister may authorize payment of duties and tolls in respect of that use.

Marginal note:Exception

(2) Nothing in this section affects the liability for payment of duties or tolls lawfully demandable in respect of any vehicles or vessels other than those belonging to or in the service of Her Majesty.

R.S., 1985, c. N-5, s. 261;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Ships in Convoy

Marginal note:Master of merchant ship to obey convoying officer

262 Every master or other person in command of a merchant or other vessel under the convoy of any of Her Majesty’s Canadian ships shall obey the directions of the commanding officer of the convoy or the directions of the commanding officer of any of Her Majesty’s Canadian ships in all matters relating to the navigation or security of the convoy and shall take such precautions for avoiding the enemy as may be directed by any such commanding officer and, if the master or other person fails to obey the directions, that commanding officer may compel obedience by force of arms, without being liable for any loss of life or property that may result from the use of that force.

R.S., c. N-4, s. 222.

Salvage

Marginal note:Crown may claim for salvage services

263 Where salvage services are rendered by or with the aid of a vessel or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces, Her Majesty may claim salvage for those services and has the same rights and remedies in respect of those services as any other salvor would have had if the vessel or aircraft had belonged to that other salvor.

R.S., c. N-4, s. 223.

Marginal note:Consent of Minister to salvage claim

264(1) No claim for salvage services by the commander or crew or part of the crew of a vessel or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces shall be finally adjudicated on unless the consent of the Minister to the prosecution of the claim is proved.

Marginal note:Time for giving consent

(2) For the purpose of this section, the consent of the Minister may be given at any time before final adjudication.

Marginal note:Evidence of consent

(3) Any document purporting to give the consent of the Minister for the purpose of this section is evidence of that consent.

Marginal note:Claim dismissed if no consent

(4) Where a claim for salvage services is prosecuted and the consent of the Minister is not proved, the claim shall be dismissed with costs.

R.S., c. N-4, s. 223.

Marginal note:Minister may accept offers of settlement

265(1) The Minister may, on the recommendation of the Attorney General of Canada, accept, on behalf of Her Majesty and the commander and crew or part of the crew, offers of settlement made with respect to claims for salvage services rendered by vessels or aircraft belonging to or in the service of Her Majesty and used in the Canadian Forces.

Marginal note:Distribution

(2) The proceeds of any settlement made under subsection (1) shall be distributed in such manner as the Governor in Council may prescribe.

Limitation or Prescription Periods, Liability and Exemptions

Marginal note:Restriction of execution against officers and non-commissioned members

267 No judgment or order given or made against an officer or non-commissioned member by any court in Canada shall be enforced by the levying of execution on any arms, ammunition, equipment, instruments or clothing used by that officer or non-commissioned member for military purposes.

R.S., 1985, c. N-5, s. 267;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Exemption from jury service

268 Every officer and non-commissioned member of the reserve force on active service and every officer and non-commissioned member of the regular force and special force is exempt from serving on a jury.

R.S., 1985, c. N-5, s. 268;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Limitation period

269(1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.

Marginal note:Saving provision

(2) Nothing in subsection (1) is in bar of proceedings against any person under the Code of Service Discipline.

R.S., c. N-4, s. 227.

Marginal note:Actions barred

270 No action or other proceeding lies against any officer or non-commissioned member in respect of anything done or omitted by the officer or non-commissioned member in the execution of his duty under the Code of Service Discipline, unless the officer or non-commissioned member acted, or omitted to act, maliciously and without reasonable and probable cause.

R.S., 1985, c. N-5, s. 270;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Compensation

Marginal note:Compensation to certain public service employees

271(1) Compensation may, to such extent, in such manner and to such persons as the Governor in Council may by regulation prescribe, be paid in respect of disability or death resulting from injury or disease or aggravation thereof incurred by any person while

(b) employed under the direction of any part of the federal public administration, or

(c) engaged, with or without remuneration, in an advisory, supervisory or consultative capacity in or on behalf of the federal public administration,

and performing any function in relation to the Canadian Forces or any forces cooperating with the Canadian Forces, if the injury or disease or aggravation thereof arose out of or was directly connected with the performance of that function.

Marginal note:Restriction

(2) No compensation shall be paid under subsection (1) in respect of any disability or death for which a pension is paid or payable by virtue of any of the provisions of the Pension Act.

Dependants

Marginal note:Arrest of dependants

272 The dependants, as defined by regulation, of officers and non-commissioned members on service or active service in any place out of Canada who are alleged to have committed an offence under the laws applicable in that place may be arrested by a member of the military police and may be handed over to the appropriate authorities of that place.

Jurisdiction of Civil Courts

Marginal note:Offences committed outside Canada

273 Where a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of, and may be tried and punished by, a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place, or by any other court to which jurisdiction has been lawfully transferred.

(ii) any quarters under the control of the Canadian Forces or the Department; and

(b) respecting the access to, exclusion from and safety and conduct of persons in, on or about any defence establishment, work for defence or materiel, including, without restricting the generality of the foregoing, regulations

(i) respecting the inspection of persons and property entering, exiting or on any such place or materiel, and

(ii) requiring any person, as a condition of being given access to that place or materiel, to submit, on demand, to a search of the person and the person’s personal or movable property while entering or exiting that place or materiel or any restricted area within that place or materiel.

R.S., 1985, c. 31 (1st Supp.), s. 59;

1998, c. 35, s. 84.

Searches

Marginal note:Searches

273.2 Except as provided for by regulations made pursuant to section 273.1, the following, namely,

(a) quarters under the control of the Canadian Forces or the Department and occupied for residential purposes by any person subject to the Code of Service Discipline either alone or with that person’s dependants, as well as any locker or storage space located in those quarters and exclusively used by that person or those dependants for personal purposes, and

(b) the personal or movable property of any person subject to the Code of Service Discipline located in, on or about any defence establishment, work for defence or materiel,

may be searched only if a warrant for that purpose has been issued or the search is otherwise authorized by law.

R.S., 1985, c. 31 (1st Supp.), s. 59;

1998, c. 35, s. 85.

Marginal note:Warrant by commanding officer

273.3 Subject to sections 273.4 and 273.5, a commanding officer who is satisfied by information on oath that there is in any quarters, locker, storage space or personal or movable property referred to in section 273.2

(a) anything on or in respect of which any offence against this Act has been or is believed on reasonable grounds to have been committed,

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence against this Act, or

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,

may issue a warrant authorizing any officer or non-commissioned member named in the warrant, assisted by such other officers and non-commissioned members as are necessary, or a peace officer, to search the quarters, locker, storage space or personal or movable property for any such thing, and to seize and carry it before that commanding officer.

R.S., 1985, c. 31 (1st Supp.), s. 59;

1998, c. 35, s. 86.

Marginal note:Investigating commanding officer

273.4 The commanding officer who carries out or directly supervises the investigation of any matter may issue a warrant pursuant to section 273.3 in relation to that investigation only if that commanding officer believes on reasonable grounds that

(b) no other commanding officer is readily available to determine whether the warrant should be issued.

R.S., 1985, c. 31 (1st Supp.), s. 59.

Marginal note:Military police

273.5 Section 273.3 does not apply to a commanding officer of a military police unit.

R.S., 1985, c. 31 (1st Supp.), s. 59.

Public Service

Marginal note:Public service

273.6(1) Subject to subsection (2), the Governor in Council or the Minister may authorize the Canadian Forces to perform any duty involving public service.

Marginal note:Law enforcement assistance

(2) The Governor in Council, or the Minister on the request of the Minister of Public Safety and Emergency Preparedness or any other Minister, may issue directions authorizing the Canadian Forces to provide assistance in respect of any law enforcement matter if the Governor in Council or the Minister, as the case may be, considers that

Marginal note:Report to Parliament

(2) The Minister shall cause a report of a review to be laid before each House of Parliament within seven years after the day on which this section comes into force, and within every seven-year period after the tabling of a report under this subsection.

Marginal note:Amending legislation

(3) However, if an Act of Parliament amends this Act based on an independent review, the next report shall be tabled within seven years after the day on which the amending Act is assented to.

2013, c. 24, s. 101.

PART V.1Communications Security Establishment

Marginal note:Definitions

Canadian means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province. (Canadien)

entity

entité

entity means a person, group, trust, partnership or fund or an unincorporated association or organization and includes a state or a political subdivision or agency of a state. (entité)

foreign intelligence

renseignements étrangers

foreign intelligence means information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group, as they relate to international affairs, defence or security. (renseignements étrangers)

Minister means the Minister of National Defence or such other member of the Queen’s Privy Council as may be designated by the Governor in Council to be responsible for the Communications Security Establishment. (ministre)

private communication

communication privée

private communication has the same meaning as in section 183 of the Criminal Code. (communication privée)

2001, c. 41, ss. 102, 128.

Marginal note:Communications Security Establishment continued

273.62(1) The part of the federal public administration known as the Communications Security Establishment is hereby continued.

Marginal note:Chief

(2) The Chief of the Communications Security Establishment, under the direction of the Minister or any person designated by the Minister, has the management and control of the Establishment and all matters relating to it.

Marginal note:Directions by Minister

(3) The Minister may issue written directions to the Chief respecting the carrying out of the Chief’s duties and functions.

Marginal note:Directions not statutory instruments

Marginal note:Appointment of Commissioner

273.63(1) The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.

Marginal note:Duties

(a) to review the activities of the Establishment to ensure that they are in compliance with the law;

(b) in response to a complaint, to undertake any investigation that the Commissioner considers necessary; and

(c) to inform the Minister and the Attorney General of Canada of any activity of the Establishment that the Commissioner believes may not be in compliance with the law.

Marginal note:Annual report

(3) The Commissioner shall, within 90 days after the end of each fiscal year, submit an annual report to the Minister on the Commissioner’s activities and findings, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.

Marginal note:Powers of investigation

(4) In carrying out his or her duties, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.

Marginal note:Employment of legal counsel, advisers, etc.

(5) The Commissioner may engage the services of such legal counsel, technical advisers and assistants as the Commissioner considers necessary for the proper performance of his or her duties and, with the approval of the Treasury Board, may fix and pay their remuneration and expenses.

Marginal note:Directions

(6) The Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Part or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council.

Marginal note:Transitional

(7) The Commissioner of the Communications Security Establishment holding office immediately before the coming into force of this section shall continue in office for the remainder of the term for which he or she was appointed.

Marginal note:Protection of Canadians

(b) shall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information.

Marginal note:Limitations imposed by law

(3) Activities carried out under paragraph (1)(c) are subject to any limitations imposed by law on federal law enforcement and security agencies in the performance of their duties.

2001, c. 41, s. 102.

Marginal note:Ministerial authorization

273.65(1) The Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.

Marginal note:Conditions for authorization

(2) The Minister may only issue an authorization under subsection (1) if satisfied that

(a) the interception will be directed at foreign entities located outside Canada;

(b) the information to be obtained could not reasonably be obtained by other means;

(c) the expected foreign intelligence value of the information that would be derived from the interception justifies it; and

(d) satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.

Marginal note:Ministerial authorization

(3) The Minister may, for the sole purpose of protecting the computer systems or networks of the Government of Canada from mischief, unauthorized use or interference, in the circumstances specified in paragraph 184(2)(c) of the Criminal Code, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.

Marginal note:Conditions for authorization

(4) The Minister may only issue an authorization under subsection (3) if satisfied that

(a) the interception is necessary to identify, isolate or prevent harm to Government of Canada computer systems or networks;

(b) the information to be obtained could not reasonably be obtained by other means;

(c) the consent of persons whose private communications may be intercepted cannot reasonably be obtained;

(d) satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent harm to Government of Canada computer systems or networks will be used or retained; and

(e) satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.

Marginal note:Ministerial conditions

(5) An authorization made under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information derived from the private communications.

Marginal note:Canadian Forces

(6) The Minister of National Defence may issue directions for the Canadian Forces to support the Establishment in carrying out activities authorized under this section.

Marginal note:Directions not statutory instruments

(7) Authorizations issued under subsections (1) and (3) and directions issued under subsection (6) are not statutory instruments within the meaning of the Statutory Instruments Act.

Marginal note:Review of authorizations

(8) The Commissioner of the Communications Security Establishment shall review activities carried out under an authorization issued under this section to ensure that they are authorized and report annually to the Minister on the review.

Meaning of Government of Canada

(9) In this section, Government of Canada means a federal institution, as defined in subsection 3(1) of the Official Languages Act.

2001, c. 41, s. 102.

Marginal note:Limits on activities

273.66 The Communications Security Establishment may only undertake activities that are within its mandate, consistent with ministerial direction and, if an authorization is required under section 273.65, consistent with the authorization.

2001, c. 41, s. 102.

Marginal note:Protection of persons

273.67 Notwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization under section 273.65 or any person who assists such a person is justified in taking any reasonable action necessary to give effect to the authorization.

2001, c. 41, s. 102.

Marginal note:Effective period of authorization

273.68(1) An authorization is valid for the period specified in it, and may be renewed for any period specified in the renewal. No authorization or renewal may be for a period longer than one year.

Marginal note:Variance or cancellation of authorization

(2) An authorization may be varied or cancelled in writing at any time.

273.69 Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this Part or in relation to a communication so intercepted.

(a) the use or disclosure under this Part of any communication intercepted under the authority of a Ministerial authorization under section 273.65; or

(b) the disclosure under this Part of the existence of such a communication.

2001, c. 41, s. 102.

PART VIAid of the Civil Power

Definition of attorney general

274 For the purposes of this Part, attorney general means the attorney general of any province, the acting attorney general of a province or any minister of a government of a province who performs for the time being the duties of a provincial attorney general.

R.S., c. N-4, s. 232.

Marginal note:Riot or disturbance

275 The Canadian Forces, any unit or other element thereof and any officer or non-commissioned member, with materiel, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace, beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service, occurs or is, in the opinion of an attorney general, considered as likely to occur.

R.S., 1985, c. N-5, s. 275;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Exception in case of certain reserves

276 Nothing in this Part shall be deemed to impose liability to serve in aid of the civil power, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

R.S., 1985, c. N-5, s. 276;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Attorney general of province may requisition aid

277 Where a riot or disturbance occurs or is considered as likely to occur, the attorney general of the province in which the place where the riot or disturbance occurs or is considered as likely to occur is situated, on the initiative of the attorney general or on the receipt of notification from a judge of a superior, county or district court having jurisdiction in the place that the services of the Canadian Forces are required in aid of the civil power, may, by requisition in writing addressed to the Chief of the Defence Staff, require the Canadian Forces, or such part thereof as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate considers necessary, to be called out on service in aid of the civil power.

R.S., c. N-4, s. 235.

Marginal note:Call out of Canadian Forces

278 On receiving a requisition in writing made by an attorney general under section 277, the Chief of the Defence Staff, or such officer as the Chief of the Defence Staff may designate, shall, subject to such directions as the Minister considers appropriate in the circumstances and in consultation with that attorney general and the attorney general of any other province that may be affected, call out such part of the Canadian Forces as the Chief of the Defence Staff or that officer considers necessary for the purpose of suppressing or preventing any actual riot or disturbance or any riot or disturbance that is considered as likely to occur.

Marginal note:Form of requisition

279 A requisition of an attorney general under this Part may be in the following form, or to the like effect, and the form may, subject to section 280, be varied to suit the facts of the case:

Province of

To Wit

Whereas information has been received by me from responsible persons (or a notification has been received by me from a judge of a (superior) (county) (district) court having jurisdiction in ) that a riot or disturbance of the peace beyond the powers of the civil authorities to suppress (or to prevent or to deal with) and requiring the aid of the Canadian Forces to that end has occurred and is in progress (or is considered as likely to occur) at ;

And whereas it has been made to appear to my satisfaction that the Canadian Forces are required in aid of the civil power;

Now therefore I, , the Attorney General of , under and by virtue of the powers conferred by the National Defence Act, do hereby require you to call out the Canadian Forces or such part thereof as you consider necessary for the purpose of suppressing (or preventing or dealing with) the riot or disturbance.

Dated at , this day of , 19.

Attorney General

R.S., 1985, c. N-5, s. 279;

R.S., 1985, c. 22 (4th Supp.), s. 75.

Marginal note:What requisition must state

(a) information has been received by the attorney general from responsible persons, or a notification has been received by the attorney general from a judge, that a riot or disturbance beyond the powers of the civil authorities to suppress or to prevent or to deal with, as the case may be, has occurred or is considered as likely to occur and that the Canadian Forces are required in aid of the civil power; and

(b) it has been made to appear to the satisfaction of the attorney general that the Canadian Forces are so required.

Marginal note:Province bound by statements, undertakings and promises in requisition

(3) Every statement of fact contained in a requisition made under this Part is conclusive and binding on the province on behalf of which the requisition is made, and every undertaking or promise in the requisition is binding on the province and not open to question or dispute by reason of alleged incompetence or lack of authority on the part of the attorney general or for any other reason.

Marginal note:Statement not open to dispute

(4) A statement of fact contained in a requisition made under this Part is not open to dispute by the Chief of the Defence Staff.

R.S., 1985, c. N-5, s. 280;

R.S., 1985, c. 22 (4th Supp.), s. 76.

Marginal note:Inquiry and report by attorney general

281 Where a requisition is made under this Part, the attorney general of the province concerned shall, within seven days after the making of the requisition, cause an inquiry to be made into the circumstances that occasioned the calling out of the Canadian Forces or any part thereof, and the attorney general shall send a report on the circumstances to such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council for the purpose of this section.

R.S., 1985, c. N-5, s. 281;

1995, c. 11, s. 44.

Marginal note:When officers and non-commissioned members have powers of constables

282 Officers and non-commissioned members when called out for service in aid of the civil power shall, without further authority or appointment and without taking oath of office, be held to have, in addition to their powers and duties as officers and non-commissioned members, all of the powers and duties of constables, so long as they remain so called out, but they shall act only as a military body and are individually liable to obey the orders of their superior officers.

R.S., 1985, c. N-5, s. 282;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Duration, increase and diminution of aid of civil power

283 The Canadian Forces or any part thereof called out in aid of the civil power shall remain on duty, in such strength as the Chief of the Defence Staff or such officer as the Chief of the Defence Staff may designate deems necessary or orders, until notification that the Canadian Forces are no longer required in aid of the civil power is received from the attorney general of the province concerned and, from time to time as in the opinion of the Chief of the Defence Staff the exigencies of the situation require, the Chief of the Defence Staff may increase or diminish the number of officers and non-commissioned members called out.

Marginal note:Advances

285 The moneys required to meet the expenses and costs occasioned by the calling out of the Canadian Forces as provided for in this Part and for the services rendered by them shall be paid out of the Consolidated Revenue Fund by the authority of the Governor in Council.

R.S., 1985, c. N-5, s. 285;

R.S., 1985, c. 22 (4th Supp.), s. 77.

PART VIIOffences Triable by Civil Courts

Application

Marginal note:Liability to civil trial

286(1) Subject to subsection (2), every person, including an officer or non-commissioned member, is liable to be tried in a civil court in respect of any offence prescribed in this Part.

Marginal note:Special provision

(2) No charge against an officer or non-commissioned member in respect of any offence prescribed in this Part shall, if the complainant is any other officer or non-commissioned member, be tried by a civil court unless the consent thereto in writing of the commanding officer of the accused officer or non-commissioned member has first been obtained.

R.S., 1985, c. N-5, s. 286;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Limitation period

287 No prosecution in a civil court shall be commenced against a person in respect of an offence prescribed in this Part, other than any of the offences referred to in section 298, except within six months after the date of commission of the offence charged.

R.S., c. N-4, s. 244.

Offences

Marginal note:Breach of regulations respecting defence establishments, works and materiel

288 Every person who contravenes regulations respecting the access to, exclusion from, and safety and conduct of any persons in, on or about any defence establishment, work for defence or materiel is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.

R.S., c. N-4, s. 245.

Marginal note:False answer on enrolment

289 Every person who appears before another person for the purpose of being enrolled and knowingly makes a false answer to any question relating to the enrolment put by or by direction of that other person to the person appearing for that purpose is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.

R.S., c. N-4, s. 246.

Marginal note:False medical certificate

290 Every medical practitioner who signs a false medical certificate or other document in respect of

(b) the service or release of an officer or non-commissioned member, or

(c) the disability or alleged disability of a person, purported to have arisen or to have been contracted during, in the course of, or as a result of the service of that person as an officer or non-commissioned member,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.

R.S., 1985, c. N-5, s. 290;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Unlawful usage in advertising, trade or service

(a) the words “Canadian Forces” or “Canadian Armed Forces” or the name of any component, unit or other element thereof or any abbreviation thereof or any words or letters likely to be mistaken therefor,

(b) any picture or other representation of a member of the Canadian Forces, or

(c) any uniform, mark, badge or insignia in use in the Canadian Forces,

in any advertising or in any trade or service, having been requested in writing by the Minister to cease that usage, is guilty of an offence punishable on summary conviction.

Marginal note:Minister’s consent required for prosecution

(2) No proceedings in respect of an offence under this section shall be instituted without the consent of the Minister.

R.S., c. N-4, s. 248.

Marginal note:Personation

292 Every person who falsely personates any other person in respect of any duty, act or thing required to be performed or done under this Act by that other person is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both.

R.S., c. N-4, s. 249.

Marginal note:False representation of desertion

293 Every person who falsely represents himself to any military or civil authority to be a deserter from Her Majesty’s Forces is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.

R.S., c. N-4, s. 250.

Marginal note:Failure to attend parade

294(1) Every officer or non-commissioned member of the reserve force who without lawful excuse neglects or refuses to attend any parade or training at the place and hour appointed therefor is guilty of an offence and liable on summary conviction for each offence, if an officer, to a fine not exceeding fifty dollars and, if a non-commissioned member, to a fine not exceeding twenty-five dollars.

Marginal note:Each absence an offence

(2) Absence from any parade or training referred to in subsection (1) is, in respect of each day on which the absence occurs, a separate offence.

R.S., 1985, c. N-5, s. 294;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Neglecting personal equipment

295 Every officer or non-commissioned member of the reserve force who fails to keep in proper order any personal equipment or who appears on parade or on any other occasion with the personal equipment of that officer or non-commissioned member out of proper order, unserviceable or deficient in any respect is guilty of an offence and liable on summary conviction to a fine not exceeding forty dollars for each offence.

R.S., 1985, c. N-5, s. 295;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Interruption or hindering of training or march

296 Every person who without reasonable excuse interrupts or hinders the Canadian Forces while training or while on the march is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars and may be taken into custody and detained by any person by the order of an officer until the training or march is over for the day.

R.S., c. N-4, s. 253.

Marginal note:Hampering manoeuvres

297 Every person who without reasonable excuse obstructs or interferes with manoeuvres authorized under section 257 is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars.

Marginal note:Unlawful disposal, removal or possession of property

(b) when lawfully required, refuses to deliver up any property that is in the possession of that person, or

(c) without lawful cause, the proof of which lies on that person, has possession of any property,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars for each offence.

Definition of property

(2) For the purposes of this section, property means any public property under the control of the Minister, non-public property and property of any of Her Majesty’s Forces or of any forces cooperating therewith.

R.S., c. N-4, s. 255.

Marginal note:Accessories to desertion and absence without leave

(a) procures, persuades, aids, assists or counsels an officer or non-commissioned member to desert or absent himself without leave, or

(b) in an emergency, aids, assists, harbours or conceals an officer or non-commissioned member who is a deserter or an absentee without leave and who does not satisfy the court that he did not know that the officer or non-commissioned member was a deserter or an absentee without leave,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars and not less than one hundred dollars or to imprisonment for any term not exceeding twelve months or to both.

Marginal note:Certificate of conviction of deserter or absentee

(2) A certificate signed by the Judge Advocate General, or such person as the Judge Advocate General may appoint for that purpose, that an officer or non-commissioned member was convicted under this Act of desertion or absence without leave or had been continuously absent without leave for six months or more, and setting out the date of commencement and the duration of the desertion, absence without leave or continuous absence without leave, is for the purposes of proceedings under this section evidence that the officer or non-commissioned member was a deserter or absentee without leave during the period referred to in the certificate.

R.S., 1985, c. N-5, s. 299;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Aid to intending deserters or absentees

300 Every person who, knowing that an officer or non-commissioned member is about to desert or absent himself without leave, aids or assists the officer or non-commissioned member in attempting to desert or absent himself without leave is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for any term not exceeding twelve months or to both.

Marginal note:Miscellaneous offences

(a) wilfully obstructs, impedes or otherwise interferes with any other person in the execution of any duty that under this Act or regulations, the other person is required to perform,

(b) counsels any other person not to perform any duty that, under this Act or regulations, the other person is required to perform,

(c) does an act to the detriment of any other person in consequence of the other person having performed a duty that, under this Act or regulations, the other person is required to perform,

(d) interferes with or impedes, directly or indirectly, the recruiting of the Canadian Forces,

(e) wilfully produces any disease or infirmity in, maims or injures himself or any other person with a view to enabling himself or the other person to avoid service in the Canadian Forces,

(f) with intent to enable any other person to render himself, or to induce the belief that the other person is, permanently or temporarily unfit for service in the Canadian Forces, supplies to or for the other person any drug or preparation calculated or likely to render the other person, or lead to the belief that the other person is, permanently or temporarily unfit for that service, or

(g) gives or receives, or is in any way concerned in the giving or receiving, of any valuable consideration in respect of enrolment, release or promotion in the Canadian Forces,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding one thousand dollars or to imprisonment for any term not exceeding twelve months or to both.

R.S., c. N-4, s. 258.

Marginal note:Offences of contempt

302 Every person is guilty of an offence and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or to both, where the person

(a) on being duly summoned as a witness under Part II, III or IV makes default in attending;

(b) being in attendance as a witness in any proceeding under Part II, III or IV,

(i) refuses to take an oath or make a solemn affirmation legally required of that person,

(ii) refuses to produce any document or thing under that person’s control and required to be produced by that person, or

(c) at any proceeding under Part II, III or IV, uses insulting or threatening language or causes any interference or disturbance;

(d) prints observations or uses words likely to bring a proceeding under Part II, III or IV into disrepute or likely to influence improperly a board of inquiry, the Grievances Committee, the Military Judges Inquiry Committee, a service tribunal, a commissioner taking evidence under this Act, the Military Police Complaints Commission, an inquiry committee established under the regulations or a witness at a proceeding under Part II, III or IV; or

(e) displays contempt, in any other manner whatever, at any proceeding under Part II, III or IV.

304 Every person who contravenes regulations respecting the quartering, billeting and encamping of a unit or other element of the Canadian Forces or of an officer or non-commissioned member is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars.

R.S., 1985, c. N-5, s. 304;

R.S., 1985, c. 31 (1st Supp.), s. 60.

Marginal note:Improper exaction of tolls

305 Every person who receives or demands a duty or toll in contravention of section 261 is guilty of an offence and liable, on summary conviction, to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both.

R.S., c. N-4, s. 262.

Marginal note:Failure to comply with convoy orders

306 Every person who fails to comply with directions given under section 262 is guilty of an offence and liable, on summary conviction, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding twelve months or to both.

RELATED PROVISIONS

— 2008, c. 29, s. 28

Review

28 (1) Within two years after the day on which this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by the committee of either the Senate or the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons or by both Houses of Parliament, as the case may be, for that purpose.

Report

(2) Within one year after the review is undertaken, or within any longer period that the Senate or the House of Commons or both Houses of Parliament may authorize, the committee shall submit a report on the review to Parliament, including a statement of any changes that the committee recommends.

— 2008, c. 29, s. 29

Reference to General Court Martial

29 For the purposes of paragraphs 239.1(1)(b) and 240.3(b) of the National Defence Act, any reference to a General Court Martial is also a reference to a Disciplinary Court Martial.

— 2012, c. 1, par. 163(b)

Pending applications — references in other legislation

163 A reference to an application for a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to an application for a pardon that is not finally disposed of on the day on which this section comes into force:

Pardons in effect — references in other legislation

165 A reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act:

(e) the definition record suspension in section 227 of the National Defence Act; and

— 2013, c. 24, s. 109

Military judges continuing in office

109 A person who, immediately before the coming into force of this section, held office as a military judge shall continue in office as if the person had been appointed under subsection 165.21(1) of the National Defence Act, as enacted by section 41.

— 2013, c. 24, s. 110

Members of Inquiry Committee continuing in office

110 A person who, immediately before the coming into force of this section, held office as a member of an Inquiry Committee established under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 41, shall continue in office as if the person had been appointed under subsection 165.31(1) of the National Defence Act, as enacted by section 45.

— 2013, c. 24, s. 111

Members of Compensation Committee continuing in office

111 A person who, immediately before the coming into force of this section, held office as a member of a Compensation Committee established under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 41, shall continue in office as if the person had been appointed under subsection 165.33(1) of the National Defence Act, as enacted by section 45.

— 2013, c. 24, s. 112

Inquiry by Inquiry Committee

112 An inquiry under subsection 165.21(2) of the National Defence Act, as it read before the coming into force of section 41, that, immediately before the coming into force of this section, had not been completed shall be continued as an inquiry under sections 165.31 and 165.32 of the National Defence Act, as enacted by section 45.

— 2013, c. 24, s. 113

Review by Compensation Committee

113 A review under subsection 165.22(2) of the National Defence Act, as it read before the coming into force of section 41, that, immediately before the coming into force of this section, had not been completed shall be continued as an inquiry under sections 165.33 to 165.37 of the National Defence Act, as enacted by section 45.

— 2013, c. 24, s. 114

Limitation or prescription period

114 The limitation or prescription period set out in subsection 269(1) of the National Defence Act, as enacted by section 99, applies only in respect of an act, neglect or default that occurs after the coming into force of section 99.

— 2014, c. 6, s. 31.1

Review

31.1 (1) Within five years after sections 21 to 31 come into force, a comprehensive review of the operation of sections 197 to 233 of the National Defence Act is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose.

Report

(2) Within a year, or such further time as authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the review is undertaken, the Committee referred to in subsection (1) must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, including a statement of any changes recommended by the Committee.

— 2014, c. 25, s. 45.1

Review

45.1 (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the House of Commons as may be designated or established by the House for that purpose.

Report

(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as the House may authorize, submit a report on the review to the Speaker of the House, including a statement of any changes the committee recommends.

AMENDMENTS NOT IN FORCE

— 2004, c. 15, s. 78

78 The Act is amended by adding the following after section 273.7:

PART V.2Authorizations

Computer Systems and Networks

Ministerial authorization

273.8 (1) The Minister may authorize in writing, either individually or by class, any public servant employed in the Department, or any person acting on behalf of the Department or the Canadian Forces who is performing duties relating to the operation, maintenance or protection of computer systems or networks of the Department or the Canadian Forces, to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any such computer system or network, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.

Authorization to Chief of Defence Staff

(2) The Minister may authorize in writing the Chief of the Defence Staff to direct, either individually or by class, any officer or non-commissioned member to intercept private communications in relation to an activity or class of activities specified in the authorization, if such communications originate from, are directed to or transit through any computer system or network of the Department or the Canadian Forces, in the course of and for the sole purpose of identifying, isolating or preventing any harmful unauthorized use of, any interference with or any damage to those systems or networks, or any damage to the data that they contain.

Conditions for authorization

(3) The Minister may issue an authorization under subsection (1) or (2) only if satisfied that

(a) the interception is necessary to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain;

(b) the information to be obtained from the interception could not reasonably be obtained by other means;

(c) the consent of persons whose private communications may be intercepted cannot reasonably be obtained;

(d) satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent any harmful unauthorized use of, any interference with or any damage to the systems or networks, or any damage to the data that they contain, will be used or retained; and

(e) satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.

Conditions in authorization

(4) An authorization issued under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information contained in the private communications.

Effective period of authorization

(5) An authorization issued under this section is valid for the period specified in it, and may be renewed f